STATE OF UTTAR PRADESH & ORS. versus ATUL KUMAR DWIVEDI & ORS on 7 January 2022

SUPREME COURT REPORTS[2022] 1 S.C.R. 28

[2022] 1 S.C.R.

STATE OF UTTAR PRADESH & ORS.

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v.

ATUL KUMAR DWIVEDI & ORS

(Civil Appeal No. 228 of 2022)

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JANUARY 07, 2022

[UDAY UMESH LALIT AND VINEET SARAN, JJ.]

Service Law: Recruitment/Selection – Process of ‘scaling ofmarks’ or ‘normalization’ adopted in selection of candidates forCthe State Police Force – Correctness of – Appropriate stage forapplication of normalization – Held: On facts, more than 6.3 lakhapplicants had submitted online application forms whosecandidature was tested in written examinations held in 29 differentbatches over 12 days – There was variability on account of the factDthat the candidates were tested on different dates over 12 daysthrough different sets of question papers – The Uttar Pradesh PoliceRecruitment and Promotion Board could not possibly have goneahead with examination for 29 different batches with the same typeof questions as the subsequent batches would then have hadadvantage of having seen the pattern of questions put to the earlierEbatches – Thus, though the subjects were same, the question paperswould necessarily be different in terms of quality and approach –In a situation such as that the “Scaling of Marks” had to be adoptedand that would always be the correct approach – Exerciseundertaken by the Board in adopting the process of normalizationat the initial stage, that is to say, at the level of Rule 15(b) ofFRecruitment Rules was quite consistent with the requirements of law– Power exercised by the Board was well within its jurisdiction andthere were no allegations of mala fides or absence of bona fides atany juncture of the process – Also, decisions made by expert bodies,including the Public Services Commissions, should not be lightlyGinterfered with, unless instances of arbitrary and mala fide exerciseof power are made out – The U.P. Sub Inspector and Inspector(Civil Police) Service (First Amendment) Rules, 2015 – UttarPradesh Sub-Inspectors and Inspectors (Civil Police) Service Rules,2008 – Rule 15(b) and 15(e) – Police Act, 1861.H

Service Law: Recruitment/Selection – Adoption of process of‘scaling of marks’ or ‘normalization’ – When appropriate –Discussed.

Administrative Law: Expert body – Held: Decisions made byexpert bodies, including the Public Services Commissions, shouldnot be lightly interfered with, unless instances of arbitrary and malafide exercise of power are made out.

Interpretation of Statutes: Same expression appearing atdifferent places in a statute – Rule of construction – Held: It is thecontext which must determine whether the same expression occurringat two different places must be considered differently or in the samelight.

Allowing the appeals, the Court

HELD: 1.1. Cases of single examination where there aremultiple number of examiners may call for moderation to beadopted by the examiner-in-chief or such body constituted forthe purposes. On the contrary, scaling of marks has been acceptedto be an appropriate method where candidates are tested indifferent subjects. As against examiner variability in the same orcompulsory examination, subject variability has been found to bea good ground to adopt “Scaling of Marks” as a method to put allthe candidates on an even keel. [Para 40][96-H; 97-A-B]

1.2. In the instant matters more than 6.3 lakh applicantshad submitted online application forms whose candidature wastested in written examinations held in 29 different batches over12 days. There was variability on account of the fact that thecandidates were tested on different dates over 12 days throughdifferent sets of question papers. The Uttar Pradesh PoliceRecruitment and Promotion Board could not possibly have goneahead with examination for 29 different batches with the sametype of questions as the subsequent batches would then havehad advantage of having seen the pattern of questions put to theearlier batches. Thus, though the subjects were same, thequestion papers would necessarily be different in terms of qualityand approach. In a situation such as that the “Scaling of Marks”had to be adopted and that would always be the correct approach.[Paras 39, 41][96-F; 97-C-D]

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A1.3. As a matter of fact, though, in an earlier decision, aBench of three Judges of this Court found the approach of “Scalingof Marks” even in the same examination to be appropriate so asto eliminate every scope for variation in the assessmentof answers and award of marks valued by different valuers.[Para 42][97-E-F]B

2. In the instant case, the clause “Detailed procedure forwritten examination shall be determined by the Board and willbe displayed on its own website” as appearing in Rule 15(b) ofthe Recruitment Rules [U.P. Sub Inspector and Inspector (CivilPolice) Service (First Amendment) Rules, 2015], specificallyCempowered the Board to devise or determine the procedure.With deletion of Appendix-3 and specific empowerment in Rule15(b), the Board could have multiple examinations instead of onesingle examination. By very nature of such empowerment and inthe backdrop of conducting an examination for more than 6 lakhDcandidates, the Board was entitled to adopt the process of ‘scalingof marks’ or ‘normalization’. Given the facts and circumstances,the process of ‘scaling of marks’ or normalization was inevitablein the instant matter and was necessarily required to beundertaken. [Para 43][97-G-H; 98-A-B]

E3.1. Going by the plain language of the concernedprovisions, what is clear is both provisions i.e. Rule 15(b) and15(e) of the Recruitment Rules refer to the expression ‘marks’.Rule 15(b) of Recruitment Rules requires every candidate toobtain minimum 50% marks in each of the subjects and states,“candidates failing to obtain 50% marks in each of the aboveFsubjects shall not be eligible for recruitment”. Rule 15(e) requiresthe Board to prepare a select list of each category of candidates,“on the basis of marks obtained by each candidate in writtenexamination under clause (b)”. The provisions do not, on theplain language employed, demand different yardstick or principleto be adopted. [Para 45][98-F-H]G

3.2. If one construes the expression ‘marks’ in Rules 15(b)and 15(e) to be ‘raw marks’ at both the stages that will go againstthe very basic idea which calls for applicability of ‘scaling of marks’or ‘normalization’ because of the variability arising from multiple H

examinations. Thus, if ‘raw marks’ is to be the basis at both thestages, the candidates would never be tested on an equal footingor basis. This would, therefore, call for either of the followingtwo alternatives:- Either to consider expressions ‘marks’ in boththese provisions to be marks after the adoption of normalization,or ‘normalized score’, or to accept the course suggested by therespondents and construe expression ‘marks’ in Rule 15(b) tobe ‘raw marks’ and apply normalization at Rule 15(e) stage onlyto consider inter se merit position. [Para 46][99-A-C]

3.3. However, if the submission advanced by therespondents is accepted, it will lead to incongruities on threecounts. It may, as well, lead to a situation where a person, in thefinal analysis i.e. after the ‘scaling of marks’ or ‘normalization’ isadopted, may have failed to secure more than 50% “normalizedscore” in a subject or subjects and yet he will be part of the SelectList. Secondly, those who may have secured more than 50%‘normalized score’ but less than 50% ‘raw marks’ will be out ofreckoning as they would not be allowed to go beyond Rule 15(b)stage. Lastly, such a course will necessarily imply that theexpression “Candidates failing to obtain 50% marks in each ofthe above subject shall not be eligible for recruitment” [asappearing in Rule 15(b)] will have to be treated differently asagainst the preparation of a select list [in terms of Rule 15(e)]“on the basis of marks obtained by each candidate in writtenexamination under clause (b)”. [Para 47][99-C-F]

3.4. It is relevant to note that the ineligibility referred to inRule 15(b) is as against ‘recruitment’. The criteria for eligibilityis not just confined to the stages upto 15(c) and 15(d) but mustbe fulfilled all through i.e. upto recruitment. Rule 15(e) makesspecific and clear reference to- marks obtained by each candidatein written examination under clause (b). The verb used is ‘obtain’at both the places i.e. in Rule 15(b) and in Rule 15(e). At both thestages the marks ‘obtained’ in written examinations referable toclause (b), are the relevant criteria for (i) being eligible forrecruitment in terms of Rule 15(b) and for (ii) preparing the selectlist under Rule 15(e). Adopting a different yardstick as suggestedby the respondents will certainly lead to incongruent situationsas stated. [Para 48][99-G-H; 100-A]

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A4. It is true that the same expression appearing at differentplaces in a statute has, on some occasions, been construed bythis Court differently, depending upon the context in which suchexpressions appear. Thus, it is the context which must determinewhether the same expression occurring at two different placesmust be considered differently or in the same light. [Paras 49,B50][100-A-B; 102-E-F]

5. If one accepts the interpretation sought to be placed bythe respondents it would result in a situation where a personhaving ‘normalized score’ of 50% marks or above may be out ofreckoning because his raw marks were less than 50%; and, thereCare sizable number of such persons. At the same time, someonewhose ‘normalized score’ was well below 50% may still be partof the Select List because his “raw marks” were above 50%.[Para 51][102-F-G]

6. If the intent is to see that every candidate must haveDobtained minimum 50% marks and those ‘candidates failing toobtain 50% marks in each of the above subjects shall not beeligible for recruitment’ as mandated by Rule 15(b) of RecruitmentRules or by paragraph 9 of the notification dated 28.6.2017, evengoing by the context and purposive interpretation, the expressionE‘marks’ must be given the same meaning at both the stages; andthe only possible meaning that can be ascribed is ‘normalizedscore’. Adopting different standards as suggested by therespondents would result in anomalous situations. Such anomalywill however stand removed if the expression ‘marks’ appearingin Rules 15(b) and 15(e) stages is construed in the same lightFand as ‘normalized score’. [Para 52][102-G-H; 103-A-C]

7. In conclusion, the exercise undertaken by the Board inadopting the process of normalization at the initial stage, that isto say, at the level of Rule 15(b) of Recruitment Rules was quiteconsistent with the requirements of law. The power exercised byGthe Board was well within its jurisdiction and as emphasized bythe High Court there were no allegations of mala fides or absenceof bona fides at any juncture of the process. Further, decisionsmade by expert bodies, including the Public Services H

Commissions, should not be lightly interfered with, unlessinstances of arbitrary and mala fide exercise of power are madeout. [Para 53][103-C-E]

8. The judgment of the High Court is accordingly set asideand the results declared by the Board on 28[th] February 2019 shallnow be given effect as early as possible. However, the State andthe Board had permitted candidates from both the categories i.e.who had secured more than 50% ‘raw marks’ as well as thosewho had secured more than 50% ‘normalized score’. Suchcandidates had participated in all the further stages, namely, inphysical standard test, physical efficiency test, though some ofthem from the first category were finally disqualified on the groundthat they had secured less than 50% ‘normalized score’. TheState may consider making some allowance in favor of suchsubsequently disqualified candidates either by granting someweightage and/or age relaxation in the next selection. [Paras 54,55][103-F-H; 104-A]

Sanjay Singh & Anr. v. U.P. Public Service Commission,Allahabad & Anr.(2007) 3 SCC 720 : [2007] 1SCR 235; Sunil Kumar and others v. Bihar PublicService Commission and others (2016) 2 SCC 495;Mahinder Kumar and Ors. v. High Court of MadhyaPradesh and Ors. (2013) 11 SCC 87; Commissioner ofIncome Tax, Bangalore v. Venkateswara Hatcheries (P)Ltd. (1999) 3 SCC 632 : [1999] 2 SCR 177; andShamrao Vishnu Parulekar v. The District Magistrate,Thana [1956] SCR 644 – relied on.

P.Singaravelan and others vs. District Collector,Tiruppur and DT and others (2020) 3 SCC 133; P.C.G.Govindan v. State of Gujarat and others (1987) 7 SCC625; U.P. State Road Transport Corporation throughits Chairman v. Omaditya Verma and others (2005) 4SCC 424 : [2005] 3 SCR 166; State of Orissa andanother v. Dhirendra Sundar Das and others (2019)6SCC 270 : [2019] 7 SCR 197; U.P. Public ServiceCommission v. Subhash Chandra Dixit and others AB

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A(2003) 12 SCC 701 : [2003] 5 Suppl. SCR 210; UttarPradesh Public Service Commission vs. Manoj KumarYadav and another (2018) 3 SCC 706 – referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No.228 of

2022.E

From the Judgment and Order dated 11.09.2019 of the High Courtof Judicature at Allahabad in W. A. No.23733 of 2018.

With

Civil Appeal Nos. 229, 230, 231, 232, 233, 234 and 235 of 2022.F

Tushar Mehta, SG, Vinod Diwakar, AAG, Vinay Navare, PallavShishodia, Ms. Vibha Datta Makhija, V. Giri, P. S. Patwalia, Dr. A. M.Singhvi, Rakesh Dwivedi, Kapil Sibal, Ms. Meenakshi Arora, Dr. RajivDhavan, Harish N. Salve, Sr. Advs., Akshat Srivastava, Krishna M.Singh, Rajiv Kumar, Sanjeev Gupta, D. K. Devesh, Ms. Pooja, RaviGShanker Jha, Durga Dutt, Rohit Priyadarshi, Dr. Sushma Singh, RakeshKumar Singh, Somesh Kumar Dubey, Amarendra Choubey, UpendraNarayan Mishra, Kousik Ghosh, Ms. Shuchi Singh, Krishna Kant Dubey, Jainendra Kumar Ojha, Sanjay KumarDubey, Rakesh Kumar Tewari, Prashant Shukla, Suyash Srivastava, H

Madhumay Mishra, Anurag Tripathi, Satyajeet Kumar, Priyank Upadhyay,Manoj K. Mishra, Umesh Dubey, D. N. Dubey, Sudhir Rawat, Dr. BheemPratap Singh, R. K. Singh, Mrs. Neeraj Singh, Kumar Gaurav, Ms. RituReniwal, Ms. Anzu K. Varkey, Aman Rastogi, Sanjay Rastogi, RobinKhokhar, Mahendra Kumawat, Arvind Aggarwal, Anas Tanwir, SachinUpadhyay, Shivendra Rathore, Ms. Garima Prasad, Sanjay Kapur, V.M. Kannan, Ms. Megha Karnwal, Amit, Surendra Singh Rana, IkshitSinghal, Vipin Sandu, Ms. Vani Vyas, Jeetendra Kumar, AshutoshChaturvedi, Maneesh Saxena, Anbarasan Nathar Paul, RaghvendraShukla, Ms. Bhanu Priya Sharma for M/s Mukesh Kumar Singh & Co.,Tom Joseph, Rohit Amit Sthalekar, Sankalp Narain, Ms. Pallavi Pratap,Ms. Prachi Pratap, Bhav Ratan, Ms. Madhavi Khanna, M/s Pratap &Co., D. K. Garg, Dhananjay Garg, Abhishek Garg, Chanakya Gupta, M.P. Parthiban, Md. Saquib Siddiqui, Ms. Priyanka Singh, Ms. ShagunThakur, Amod Kumar Bidhuri, Raghwendra Tiwari, Ms. Mamta Tiwari,Ravi Mishra, Ajay Kumar, Abhishek Verma, Ms. Amrita Kumari, AbbulaKalam, Satish Pandey, Abdul Qadir, Dr. Brij Bhushan K. Jauhari, GauravYadav, Lalit Chahar, Ms. Purnima Jauhari, Harsh Mahan, O. P. Singh,Arvind Kumar Shukla, Ms. Preetika Dwivedi, Prashant Mishra, PrakharSaran, Tarun Agrawal, Ms. Anuroop Chakravarti, Purushottam Sharma Tripathi, RaviChandra Prakash, Abhishek Tripathi, Ms. Sushma Vyas, Adit Pujari, Ms.Sujata Muni, Manish Kumar Gupta, Shashank Singh, Romil Pathak,Arvind C., Vinay Bhardwaj, Amit Kumar, Prashant Chaturvedi, AnandSharma, Dr. Ashwani Bhardwaj, A. Dev Kumar, Vipin Sharma, AtuleshKumar, Pradeep Kumar Yadav, Vishal Thakre, Abhay Singh Yadav, RudraPratap Yadav, S. B. Khan, Sanjeev Malhotra, Ms. Bansuri Swaraj, SanjayKr. Yadav, Rakesh Kumar, Divhyash Tiwari, Binod Kumar Singh, RaviShanker Jha, Shish Pal Laler, Ravi Panwar, Anand Mishra, AmrendraKumar Singh, Ms. Shivangi Popli, Vivek Sharma, Ms. Rachana Sharma,Kaushal Yadav, Sandeep Mishra, Nandlal Kumar Mishra, Ms. ShwetaYadav, Dr. Ajay Kumar, M. Shoeb Alam, Amit K. Ranjan, Pinkesh Kumar,Mojahid Karim Khan, Ms. Akansha Rai, Ms. Apeksha Rai, Ms. YashodaKatiyar, Ms. Kritya Pandey, Krishna M. Singh, Vishal Singhal, RavleenChhabra, Anand Nandan, Hassan Zubair Waris, Amit Pawan, Ms. NidhiAgarwal, Pankaj Sharma, Neeraj Kumar Sharma, Manish Vashistha,Dr. B. Ramaswamy, Danish Zubair Khan, Mukesh Kumar, Ms. RichaKapoor, Kunal Anand, Badri Prasad Singh, Shivendra Singh, PradeepMisra, Randhir Kumar Ojha, Advs. for the Appellants.

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AThe Judgment of the Court was delivered byUDAY UMESH LALIT, J.

Leave granted.

1. These appeals arise out of the final judgment and order datedB11.09.2019 passed by the High Court[1].

2. A notification was published by the State Government invitingonline application forms from male candidates for filling up 2400 postsof Sub-Inspector of Police, 210 posts of Platoon Commander (PAC[2])and 97 posts of Fire Officer (Grade-II) in Uttar Pradesh Police. TheCprocedure for recruitment contemplated Online Written Examination,Physical Standard Test and Physical Fitness Test whereafter the finallist of selected candidates would be published. The relevant portion ofthe notification dealing with online written examination was as under:

“4. Procedure of Recruitment

DThis recruitment is done under Uttar Pradesh Sub Inspector andInspector (Police) Service (1[st] Amendment) Rulebook – 2015.

4.1 Online Written Examination

All the applicants whose application have been found to be correctand accepted will be expected to take up a 400 marks onlineEwritten examination. This examination will contain question basedon 4 subjects listed below and will be based on multiple choicetype questions.

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GApplicants who will fail to score a minimum of 50 percent marksin the test will not be eligible for recruitment. Depending on thenumber of applicants the written examination will be carried out 1 High Court of Judicature at Allahabad in Writ Application No.23733 of 2018 and allother connected matters.H2 Provincial Armed Constabulary.

on one day and one session, or on one day multiple sessions or onmultiple days multiple sessions. For each session the question paperwill be different. The course for the online examination is inAnnexure-1. If after completion of online examination and beinginvited by the board the applicant makes any objection then hehas to pay a pre-determined charge. If the objection has beenfound to be true then the amount will be refunded.”

2.1 Similar notification was published on the same date with respectto 600 posts of Sub-Inspector (Nagrik Police) for female candidates.The recruitment procedure was dealt with in Para 4 of the notificationand the portion dealing with “Online Written Examination” was identicalto Para 4.1 quoted hereinabove.

3. In response to these advertisements, 6,30,926 applicantssubmitted their online application forms. Considering the large numberof candidates who had offered their candidature, a notification waspublished on 28.6.2017, the translated portion of which was as under:

“NOTICE/ RELEASE

No.PRPB-Anu-6-P-18/2016Dated: June 28, 2017

1. For the Males for the Direct Recruitment 2016 on the postsof the Sub-Inspector (Nagrik Police), Platoon CommanderPAC and Fire Brigade Second Officers and for filling up2400 posts for the Sub-Inspector (Nagrik Police), 210 postsfor the Platoon Commander PAC and 97 posts for the FireBrigade Second Officer from the Males candidates onlineapplication was invited.

2. Similarly for the Females for the post of Sub-Inspector(Nagrik Police) under the Direct Recruitment – 2016 in theUttar Pradesh Police for the 600 posts for filing up the postsfor the Sub-Inspector (Nagrik Police) from the Femalescandidates online application was invited.

3. For the Males on the posts of Sub-Inspector (Nagrik Police),Platoon Commander, PAC and Fire Brigade SecondOfficers under the Direct Recruitment-2016 total 5,42,124candidates and for the Females for the filling up the postfor the Sub-Inspector (Nagrik Police) under the DirectRecruitment-2016, 88,802 viz. total 6,30,926 candidates hadapplied.

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A4.On the posts of Sub-Inspector (Nagrik Police), PlatoonCommander PAC and Fire Brigade Second Officer in thedirect online written examination on the basis of the seniorityof the received marks this examination is being run/organized. In accordance with the number of the candidatesthe online written examination in more than one date in theBdifferent sitting along with the different questions papersthe need has come for getting organized the same. Thequestion paper of every sitting will be different in whichthere may not be possibility of equality and keeping in viewthe same in the different questions paper by the candidatesCthe Normalisation of the received marks “MAH-MBA/MMS CET 2015” by the used Standardized Equi-percentilemethod it will be done.

5. The construction of the question paper of the online writtenexamination will be as under:- D

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6. In the question paper total 160 questions will be there. Forevery question there will be four alternative answers, inwhich the candidates will select one out of four alternativeGanswers which the candidate feels it correct. For everyquestion select only one answer and fill up online answer.

7. For every correct answer 2.50 marks is fixed or for anyincorrect answer no negative marking will be done there.

8. In any subject in case of cancelling of any question theHvaluation procedure in the Writ Petition No.2669/2009 (MB)

– Pawan Kumar Agrahari vs. Uttar Pradesh Public ServiceCommission by the Hon’ble High Court it will be done inaccordance with the established law and order.

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9. In every subject in receiving 50% marks the candidate whofailed to do so for the recruitment procedure he will not beeligible.

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10. In the question paper leaving the general Hindi subject thequestion paper of other subjects there will be in Hindi andEnglish Language. Any question in other native languageon the login screen it will be selected it may be seen. Incase of any doubts the English translation will beacceptable……”

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4. Paragraph 4 of the notification dated 28.06.2017 thus statedthat normalization of marks received, would be done as per “StandardizedEqui-percentile method” used in MAH-MBA/MMS CET 2015.

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It may therefore be relevant at this stage to set out relevantinstructions pertaining to MAH-MBA/MMS CET 2015. The instructionsissued by the Directorate of Technical Education, Maharashtra State,Mumbai for holding the online Common Entrance Test were:- “Instructions for Registration for MAH-MBA/MMS-CET2015 by candidate:

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1. MAH-MBA/MMS-CET 2015 shall be conducted only inthe ONLINE mode in multiple sessions. CompetentAuthority, using standardized equi-percentile method, willbe equating scores across sessions.

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The information brochure dealt with issue of arriving at the equatedscore as under:

“(i) Number of questions answered correctly by a candidatein each objective test is considered for arriving at theGCorrected Score.

(ii) The Corrected Scores so obtained by a candidate are madeequivalent to take care of the minor difference in difficultylevel, if any, in each of the objective test held in differentsessions to arrive at the Equated Scores.*

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*Scores obtained by candidates on any test are equated tothe base form by considering the distribution of scores ofall the forms.

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(iii) testwise scores and scores on total is reported with decimalpoints upto two digits.

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Please note that the types of questions shown here are onlyillustrative and not exhaustive. In the actual examinationyou will find questions of a higher difficulty level on someor all of these types and also questions on the types notmentioned here.”

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5. Written examination was held between 12[th] to 23[rd] December,2017 in 29 different sittings. In other words, 29 different batches ofstudents appeared for the written examination where the question paperswere different. After the completion of written examination, 11741students were called for further stages to participate in “PhysicalDStandards Test” and “Physical Efficiency Test”. This number comprisedof 5461 candidates who had secured more than 50% actual marks in thewritten examination which shall hereafter be referred to as “raw marks”;while 5713 candidates had secured more than 50% marks after the processof normalization as set out in para 4 of the Notification dated 28.06.2017was adopted, which marks shall hereafter be referred to as “normalizedEscore”.All these 11741 candidates were allowed to take part in the furtherstages of the process of selection.

6. In October, 2018, Writ Petition No.23733 of 2018 was filed inFthe High Court by certain candidates who had secured more than 50%raw marks submitting inter alia that the Board[3] had wrongly applied thenormalization process by issuing call letters to all those candidates whohad not obtained more than 50% raw marks but had secured more than50% normalized score. It was submitted that the candidates who hadnot secured more than 50% raw marks but could cross 50% only withGthe help of normalized score could not be included in the list of qualifiedcandidates and were required to be excluded from the process of selection.

In the affidavit in reply filed by the Member Secretary of theBoard[3] to said writ petition, it was stated :- H3 Uttar Pradesh Police Recruitment and Promotion Board, Lucknow.

“10. That in the present selection all the candidates who hasobtained 50% marks either in the category of raw marks or afterthe process of normalization in each of the subject such candidateshas been declared successful for next stage of recruitment suchas document verification and physical standard test and theaforesaid process of normalization is being adopted by the Boardin accordance with law and as the present writ petition as framedis devoid of any merits and the grounds taken therein have noforce and as such the present writ petition is liable to be dismissed.”

7. On 28.02.2019, the final result of the selection process wasdeclared which comprised of eight lists as under:- “(i) List 1 – List of 2181 selected candidates for the post of SubInspector (Civil Police), Platoon Commander PAC and FiremanSecond Officer.

(ii) List 2 – A joint merit list of 2181 selected candidates for SubInspector (Police), Platoon Commander PAC and Fireman SecondOfficer.

(iii) List 3 - A joint merit list of 2181 selected candidates for SubInspector (Civil Police), Platoon Commander PAC and Fireman– Second Officer categories.

(iv) List 4 – A list of 1943 candidates selected for Sub Inspector(Civil Police).

(v) List 5 – 162 candidates selected for Platoon Commander PAC.

(vi) List 6 – List of 76 officers selected for Fireman Second Officer.

(vii) List 7 – List of non-selected candidates.

(viii) List 8 – List of candidates declared unsuccessful in the writtenexamination.”

8. Thereafter, an application seeking amendment of Writ PetitionNo.23733 of 2018 was filed and the following prayer was sought to beadded: - “(iii-a) issue a writ, order or direction in the nature of certiorariand quash the impugned result dated 28.02.2019 (Annexure-8)regarding List-B showing name of Petitioners Nos.1, 2, 4, 12, 21,26, 41, 61, 62, 63, 70, 80, 81, 82, 84, 90, 94, 97, 98 and 99 as wellas other candidates failed in written exam.”

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AThe aforesaid amendment application was allowed by a SingleJudge of the High Court vide Order dated 06.03.2019.

9. Some of the unsuccessful candidates had also filed Writ PetitionSS No.6540 of 2019 (Manish Kumar Yadav and 49 Ors. v. State of U.P.Thru Addl. Chief Secy. Home Lucknow and Ors.) before the LucknowBBench of the High Court.

In the reply dated 23.03.2019, filed by the Principal Secretary,Department of Home, Government of Uttar Pradesh to said Writ Petition,it was submitted:- “It is further submitted that the written examination has beenCorganized by the U.P. Public Service Commission by differentpapers and same has been evaluated by the different examinersand as such scaling system has been adopted by the U.P. PublicService Commission. Hence the aforesaid judgment cited by thepetitioners is not applicable.

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It is also relevant to mention here that selection in question hasbeen conducted online but in the aforesaid online examination thereis no difference in the subject, however, considering the hugenumber of candidates online examination was held on differentdates and different shifts, as such different set of papers withEvarying levels of difficulty have been used. It is further submittedthat for normalization of the Marks of the candidates who appearedin different papers, Standardized Equi-percentile Method has beenapplied. Where the Examination were held in different dates,different shifts and different set of papers. The Normalizationprocess has been adopted in different National Examination,Ftherefore, the Normalization process adopted by board is legaland justified.”

10. In said Writ Petition No.6540 of 2019 and other connectedmatters, a Single Judge of the High Court passed an interim order on30.03.2019, the operative portion of which was:-G

“As an interim measure, it is provided that till the next date oflisting, no appointment letter shall be issued to the selectedcandidates pursuant to the select list / result dated 28.02.2019,which is contained as Annexure No.1 to the writ petition, however,the process of selection which is being undertaken by the StateHAuthorities may go on.”

11. The aforestated Order dated 30.03.2019 was challenged bysome of the selected candidates by preferring Special Appeal (Defective)No.210 of 2019 (Satyendra Kumar Singh and Ors. vs. State of U.P.Thru. Add. Chief Secy, Deptt. of Home and Ors).

The Division Bench of the High Court considered rival submissionsadvanced by the concerned candidates and the State Government andby its order dated 27.05.2019 modified the interim directions issued bythe Single Judge. The operative portion of the order passed by the DivisionBench was:- “….After considering the rival submissions, this Court is of theopinion that the process of recruitment, which was initiated in theyear 2016 for which the final select list has been issued on28.02.2019 could not be hampered on account of any order passedby the Court. It is not in dispute that the introduction of the Ruleof Equi-percentile Methodology was notified by means of the noticedated 28.06.2017 i.e. prior to the date when the examination washeld and none of the writ petitioners had assailed the saidMethodology. After having appeared in the examination and upondeclaration of the final select list, it would not be appropriate forsuch candidates to hold the entire recruitment process to ransom.However, without entering into the merits of making anyobservations, this Court in the facts and circumstances deemappropriate that subject to the directions given in this special appeal,the respondent No.2 i.e. U.P. Police Recruitment and PromotionBoard may issue the appointment letters, which shall be subjectto the final outcome of the writ petition pending before the learnedSingle Judge.

The appellants and other selected candidates shall give theirundertaking before the appropriate authority concerned that theyshall not claim any lien or right over the appointment and theirappointments shall be purely subject to the outcome of the writpetitions pending before the learned Single Judge. The appellantsshall ensure that they file their counter affidavit before the nextdate of listing before the learned Single Judge, who shall uponexchange of pleadings shall consider the issue involved shall decidethe writ petitions pending before it.”

12. Consequently, selected candidates were sent for training.

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12. Consequently, selected candidates were sent for training.

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A13. The Order dated 27.05.2019 passed by the Division Benchwas challenged by some of the candidates by preferring Special LeavePetition (Civil) No.13551 of 2019 (Manish Kumar Yadav and Ors. vs.State of Uttar Pradesh and Ors.) which came up before the VacationBench of this Court on 12.06.2019 when following order passed by thisCourt: -B

“We do not find any cogent grounds to interfere with the order ofthe Division Bench impugned. The selected candidates have givenan undertaking that they shall not claim any lien or right over theappointments which shall be subject to the result of the writ petition.The special leave petition is not entertained.C

We, however, request the Chief Justice of the High Court toconstitute a special Division Bench to expeditiously hear the writpetition on day-to-day basis without granting necessaryadjournments and to dispose of the writ petition as expeditiouslyas possible preferably within thirty days from the date ofDconstitution of the Bench.

The special leave petition and pending applications are accordinglydisposed of.”

14. Thereafter, a Special Division Bench was constituted atEAllahabad. Similarly, a Special Bench was also constituted at LucknowBench of High Court. The Special Division Bench constituted atAllahabad allowed Writ Petition No.23733 of 2018 and other connectedmatters by its judgment and order dated 11.09.2019 which is presentlyunder challenge.

F14.1 The rival submissions advanced by the parties, weresummarized by the Special Division Bench at Allahabad as under:- “61. Having noted the rival contentions, at length, the submissionsof the learned counsel for the petitioners, in brief can besummarized as follows:- G(i) the Selection Board has been conferred limited power underthe Recruitment Rules only to determine the procedure of writtenexamination;

(ii) the Selection Board is not vested with the power and authorityto determine the procedure of selection which has been prescribedHby the rule making authority;

(iii) the eligibility condition of obtaining 50% marks by a candidateis a condition precedent mandated under the Rules, which is notsubject to any alteration or substitution by normalized score;

(iv) normalization is a method of evaluation falling within the ambitof written examination and not an eligibility condition, normalizedscore at the best can be applied for preparing the select list inorder of merit;

(v) the Selection Board by eliminating the qualified candidateshaving scored 50% marks in each subject by applying thenormalized score exceeded its power and authority vested by theRecruitment Rules;

62. In rebuttal the submissions on behalf of the respondents, canbe briefly summarized as follows:-

(i) the Selection Board is vested with the power and authority toequalize the marks obtained by a candidate in the backdrop ofwritten examinations held on multiple dates/multiple shifts withdifferent papers;

(ii) the Selection Board has inherent power to adopt a fair and justprocedure by equalizing the marks to place all the candidates on alevel playing ground;

(iii) the Selection Board has power to equalize the eligibility marks(50%) prescribed under the Rules in an examination held in multipleshifts with different standard of papers;

(iv) candidates appearing in difficult papers would be indisadvantageous position as against candidates appearing inrelatively easier question papers. The word ‘’marks’ used in Sub-clause (b) and (e) of Rule 15 would mean and include normalizedmarks.

(v) petitioners after participating in the selection process cannotturn around to challenge the same.

63. Rival submissions fall for consideration.”

14.2 The questions that arose for consideration were formulatedas under: - “(i) whether the Selection Board was within its power and authorityin applying the normalized percentile score to determine theeligibility of the candidates or in the alternative whether theSelection Board transgressed its authority to alter/substitute the AB

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Aeligibility criteria (50% marks) mandated in Sub-clause (b) of Rule15 by normalized score to non-suit, all such candidates from therecruitment process who obtained 50% marks and above;

(ii) the scope of judicial review of the Standardized EquitablePercentile Method adopted by the Selection Board.”

B14.3. In paragraph 66 of its judgment, the Special Division Benchquoted Rule 15 of the Recruitment Rules[4]:

“”Procedure for Direct Recruitment to the post of Sub-Inspector:-

15. (a) Application form and call letter:-CA candidate shall fill only one application Form. The Board willaccept only online applications. The application of candidates, whofill more than one form, may be rejected by the Board. The Headof the Department, in consultation with the Board, shall fix anapplication fee for any recruitment. Detailed procedure of fillingDthe Application Form and issuance of call letter shall be determinedby the Board and will be displayed on its own website.

The Government may change the number of vacancies for anyrecruitment at any time before the first examination and may alsocancel any recruitment at any time or stage of recruitment withoutEassigning any reason therefor.(b) Written examination Candidates whose applications are found correct, shall be requiredto appear for written test of 400 marks. In this written examination,the Board will keep one objective type question paper of theFfollowing subjects:- G

4 The U.P. Sub Inspector and Inspector (Civil Police) Service (First Amendment) Rules, H2015 framed in exercise of powers under the Police Act, 1861.

Candidates failing to obtain 50% marks in each of the abovesubjects shall not be eligible for recruitment. The detailedsyllabus for the examination will be decided by Board and will bedisplayed on its own website. The Board will decide at its ownlevel to conduct written examination on one date in a single shiftor in more than one shift or on more than one shift or on morethan one date in different shifts with different question paper.Detailed procedure for written examination shall bedetermined by the Board and will be displayed on its ownwebsite.

(c) Scrutiny of documents and physical standard test:- Candidates found successful in written examination underclause (b) shall be required to appear in Scrutiny ofDocuments and physical Standard Test. Keeping in view thetotal number of vacancies, the Board shall decide at its own level,the number of candidates on the basis of merit to be called for thistest. Physical Standards for candidates are as follows:-

1. Minimum Physical Standards for male candidates are asfollows:- (a) Height:- xxxxxx (b) Chest:- xxxxxx

2. Minimum Physical Standards for female candidates areas follows:- (a) Height:- xxxxxx (b) Weight:- xxxxxx For conducting this examination, a Committee will be constitutedby the Board in which a Deputy Collector nominated by the DistrictMagistrate will be the Chairman and the Deputy Superintendentof Police nominated by the District Superintendent of Police willbe the member, the other members of the committee shall be AB

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nominated by the District Magistrate or the Superintendent ofPolice if requested by the Selection Board.

Detailed procedure for this examination shall be determinedby the Board and will be displayed on its own website.

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(d) Physical Efficiency test:-

Candidates found successful in Scrutiny of Documents andPhysical Standard Test as per clause (c) will be required to appearin Physical Efficiency Test, which will be of qualifying nature……Detailed procedure for Physical Efficiency Test shall bedetermined by Board and will be displayed on its own website.For conducting this exam a committee will be constituted byBoard……..

(e) Selection and final merit list:-

From amongst the candidates found successful in PhysicalEfficiency Test under clause (d), on the basis of marks obtainedby each candidate in written examination under clause (b). Boardshall prepare, as per the vacancies, a select list of each categoryof candidates, as per order of merit keeping in view reservationpolicy and send it with recommendation to the Head of theDepartment subject to Medical test/character verification. Nowaiting list shall be prepared by the Board. List of all candidateswith marks obtained by each candidate shall be uploaded on itswebsite by the Board. The Head of the Department shall afterhis approval forward the list sent by the Board to the AppointingAuthority for further action.

Note:- xxxxxxxxx

(f) Medical Test:-

The candidates whose names are in the select list as per clause(e), will be required to appear for Medical Examination by theAppointing Authority. For conducting the medical examination,the Chief Medical Officer of the concerned district shall constitutea medical Board, which will have 03 doctors, who will conductMedical Examination as per “Police Recruitment MedicalExamination Forms” as prescribed and codified by the Head ofDepartment in consultation with the Director General of Medical Health. Any candidate not satisfied by his Medical Examination,may file an appeal on the day of examination itself. xxxxxxxx Thecandidates found unsuccessful in Medical Examination shall bedeclared unfit by the Appointing Authority and such vacanciesshall be carried forward for next selection”.

(Emphasis supplied)

14.4 The Special Division Bench was not satisfied with thetranslation of the relevant parts of the notification dated 28.06.2017 andas such, it translated paragraphs 4 and 9 of the notification as under:- “4. The direct recruitment to the posts of Sub Inspector Civil Police,Platoon Commander, PAC and Fire Officer II is being conductedon the basis of merit in terms of the marks obtained by thecandidates successful in the online written examination. In viewof the number of candidates, need has arisen for conducting onlinewritten examination on more than one date in different shifts withdifferent sets of papers. Question papers of the different shiftsshall be different, and keeping in view the possibility of them beingnot similar, the normalization of the marks obtained by thecandidates in different question papers shall be done by the “MAH-MBA/MMS CET 2015” Standardized Equi-percentile Method.

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9. The candidates who fail to obtain 50 percent marks in eachsubject shall not be eligible for the recruitment.”

14.5 The submissions advanced by the learned counsel for thewrit petitioners were summed up as under:-

“14. To summarise the arguments of the learned counsels forboth sides, Sri R.K. Ojha, learned Senior Advocate appearing forthe petitioners submits that the process of normalization adoptedby the respondents for preparation of the eligibility list is notcontemplated in the Recruitment Rules. Even the Selection Boardwhile issuing notification dated 17.06.2016 in Clause 4.1 and 4.2thereunder provided that selection would be made on the criteriaof 50% marks being the qualifying marks in the written examinationand select list calling the candidates for participation in the processof scrutiny of documents and Physical Standard test would bedrawn on the said criteria.

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15. In the notification dated 28.06.2017 (which was issued in Hindi),it was categorically provided that the candidates who did not attain50% marks would be disqualified and would not be treated aseligible candidates. In paragraph no.’4’ of the said notification itwas provided that normalization of the total marks obtained bythe candidates taking the question paper as one unit would bemade by applying Equi Percentile method for the purpose ofdrawing inter-se merit of the selected candidates. The SelectionBoard had committed illegality in drawing the final merit list byexclusion of all those candidates who did not attain 50% normalizedmarks (by applying the Equi-percentile Method) in each subjectthough they attained 50% actual/raw marks in each four subjectsof the question paper for written examination and, thus, werequalified to be included in the list of eligible candidates forparticipation in further stage of “Physical test and scrutiny ofdocument” as per the Rule 15(c) of the Recruitment Rules. Thecriteria of selection had been changed during the course of theselection process which was not permissible in view of the settledlegal proposition that rules of the game cannot be changed duringmid of the game.”

14.6 The submissions on behalf of the State were:- “43. Sri Manish Goyal, learned Additional Advocate General onbehalf of the State-respondents and the Selection Board, in replyto the arguments advanced by the learned counsels for thepetitioners and to justify the process of normalization adopted bythe Selection Board made the following submissions:-

44. The first submission is that the normalization is an universallyapproved standard method applicable in case of variable difficultylevel of question papers and, therefore, application thereof waswell within power of evaluation of the Selection Board. Placingthe affidavit dated 12.04.2019 filed on behalf of the respondentNos.2 & 3, it is contended that normalized marks “Y” were derivedafter applying the Equi Percentile formula on fraction of 100 andas such denote percentage and not percentile. The said formulawas worked out by the agency which had conducted theexamination and prepared result for the Selection Board. Theexperts/statistician of the company had applied Equi-percentileMethod in coordination with and under the instructions of the Selection Board. It is wrong to assert that normalized marksachieved by the Equi-Percentile Method and percentile are oneand the same thing. Ultimate value of “Y” being value out of‘100’ is percentage marks of the candidates. The equation of EquiPercentile formula re-written on fraction of 100 at page no.’10’(Annexure no.2 of the said affidavit) is noted hereunder:- 14.7 The relevant discussion and the conclusions arrived at by theSpecial Division Bench were:-

“78. On a plain reading of Sub-clause (b) of Rule 15, the rulemaking authority explicitly and clearly mandated that a candidatefulfilling the educational qualification would have to take the writtenexamination, in the event of the candidate ‘failing to obtain 50%marks’ in each subject would not be ‘eligible’ to participate in thesubsequent stages of recruitment. The latter part of Sub-clause(b) confers power upon the Selection Board to determine: (i) detailsyllabus for the examination; (ii) to conduct written examinationon one date in single shift or in more than one shift or on morethan one date in different shifts with different question papers;(iii) to determine the procedure for written examination. Sub-clause(c) of Rule 15 provides that candidates found “successful in writtenexamination under sub-clause (b)” shall be required to appear inscrutiny of documents and physical efficiency test.

79. On conjoint reading of Sub-clause (b), in particular, the firstpart with sub-clause (c), it is evidently clear that the SelectionBoard has not been conferred power to dilute, alter or prescribethe eligibility of a candidate by substituting the mandated ’50%marks’ by the ‘normalized score’ to qualify the candidates forsubsequent stages of selection. The rule making authority uponprescribing the eligibility criteria, conferred limited power uponthe Selection Board to determine the detailed procedure of writtenexamination. The procedure of selection was prescribed by therule making authority under Rule 15, however, the Selection Board A

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was conferred limited power to determine the procedure of writtenexamination. In the facts of the instant case, the Selection Boardexceeded its authority and power by applying the normalized scoreand not the raw marks to determine the eligibility of the candidateswhile preparing the select list. The petitioners, herein, qualifiedthe written examination by scoring ’50% marks’ in each subject,thereafter, were invited by the Selection Board to participate inthe subsequent stages of recruitment i.e. document verificationand physical efficiency test, which is of a qualifying nature, nomarks are allotted. The Selection Board, however, eliminated thepetitioners by applying the normalized score in order to determinethe eligibility qualifying marks in contradiction to that mandatedunder the Rule in gross violation of Sub-clause (b) of Rule 15.The conduct of the Selection Board tantamounts to re-writing/amending the mandatory rule, thereby, vitiating the select list.”

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88. On reading Sub-clause (b) and (e) of Rule 15 the word “marks”used therein have different connotation. The phrase ‘failing toobtain 50% marks’ employed by the rule making authority in Sub-clause (b) prescribes the eligibility criterion which is mandatoryqualification. In other words, a candidate failing to obtain theprescribed eligibility marks gets excluded from the recruitmentprocess automatically. Whereas, the phrase “marks obtained byeach candidates” employed in Subclause (e) of Rule 15, wouldnot mean and include the marks obtained by the candidate fordetermining his/her eligibility, but would take within its fold the‘normalized score’ for preparing the select list in order of meritafter equalising the marks obtained by the candidates in Sub-clause(b). Sub-clause (b) refers to marks prescribed by the rule foreligibility purpose, whereas, Sub-clause (e) refers to marks/scoreobtained upon evaluation upon normalization of the marks referredto in Sub-clause (b) for the purpose of making the select list in theorder of merit. Such an approach in drawing the select list in anexamination held in multiple shifts would be just and fair. TheSelection Board is within its powers in adopting a method ofevaluation of written examination papers in the backdrop of multipleshifts/different paper exams to arrive at a process to prepare theselect list in order of merit.

103. We are also fortified in our conclusion while tracing theevolution of the Rules pertaining to the recruitment of Sub-Inspector. The Recruitment Rules came to be amended on 3December 2015. The selections have been made pursuant to theamended Rules. Sub clause (b) of Rule 15 provides that“candidates failing to obtain 50% marks in each of the subjectshall not be eligible for recruitment”. The same phrase wasemployed in Sub-clause (e) of Rule 15 that came to be amended.In other words, eligibility criteria was not altered or changed byrule making authority. The only change brought about by theamendment was that the procedure for written examination wasentrusted upon the Selection Board exclusively by omittingAppendix-3 which prescribed the procedure of writtenexamination. We are informed that the superseded Rule (Prior toenactment of Recruitment rules) governing the appointment andselection of Sub-Inspector, viz. “the Uttar Pradesh Sub-Inspectorand Inspector (Civil Police) Service rules, 2008”, Rule 15(f)provided that the candidate ‘who fails to obtain minimum 50%marks’ in each subject shall not be eligible for recruitment. It is,thus, evident that the rule making authority was fully consciousthat the candidates are required to score minimum marks (50%),failing which, they shall not be eligible for recruitment. The eligibilitycriteria was retained while promulgating Recruitment Rules. TheSelection Board was not conferred the power and jurisdiction bythe rule making authority to alter or amend the eligibility criteria.The Selection Board by the amended rules was vested withexclusive, but limited power to determine the procedure of thewritten examination, which includes evaluation of papers byadopting method of scaling to equalize the different levels of papersin examination held in multiple shifts and, accordingly, draw theselect list. We accordingly find merit in the contention of thepetitioners that Selection Board exceeded its authority bydisqualifying the petitioners.

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107. Normalisation of marks, therefore, means increasing and/ordecreasing the marks obtained by students in different timingsessions (shifts) to a certain number. In statistics, the termnormalization refers to the scaling down of the data set such that ABC

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the normalized data falls in the range between 0 and 1. Suchnormalization techniques help in comparing correspondingnormalized values from two or more different data sets in a waythat it eliminates the effects of the variation in the scale of thedata sets i.e. a data set with large values can be easily comparedwith a data set of smaller values. The normalized score/percentileis obtained by applying a formula.

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108. Percentiles, however, should not be confused with percentage.The latter is used to express fractions of a whole, while percentilesare the values below which a certain percentage of the data in adata set is found. In practical terms, there is a significant differencebetween the two. The percentage score reflects how well thestudent did in the exam itself, the percentile score reflects howwell he did in comparison to other students. Percentile rank would,therefore, mean percentage of scores that fall at or below a givenscore. Usually written to the nearest whole percent and are dividedinto 100 equally sized groups. The lowest score is at the firstpercentile and the highest score is at the 99th percentile.

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109. It is relevant to place on record that none of the aggrievedcandidates have made any allegation of mala fides or lack of bonafides, as against the Selection Board or its members or for thatEmatter in the manner in which subsequent stages of selection wereheld by the Committee or with regard to the computation ofnormalized score arrived at by applying the Standardized Equi-Percentile method. In the absence of challenge to the normalizationmethod and the scores obtained by the Selection Board in scalingthe marks of the candidates scored in written examination, weFtake it that the normalisation formula and the normalized percentilescore worked out by the Selection Board is just and fair.

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122. On specific query, learned Additional Advocate Generalsubmits that all the petitioners herein who obtained 50% minimummarks (qualifying marks) were allowed to participate in thesubsequent stages of selection i.e. physical standard test, documentverification and physical efficiency test. It is, therefore, urgedthat the Selection Board would not be required to undertake anyfresh exercise of selection/recruitment in preparation of the selectlist in order to merit.

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123. Having due regard to the facts and circumstances of thecase and the provisions mandated by the Recruitment Rules, thewrit petition is allowed by passing the following orders:

i) the select list dated 28 February, 2019 is set aside and quashed;

ii) the candidates having failed to obtain 50% marks (raw marks)in each subject are declared ineligible for recruitment/selection;

iii) the Selection Board shall prepare the select list in order ofmerit on normalized score, derived by Standardized EquiPercentileMethod;

iv) Selection Board to comply the order within six weeks from thedate of filing of certified copy of this order and the selectedcandidates shall be sent for training.”

15. The points which were noted or weighed with the SpecialDivision Bench of the High Court can be summed up as under:- a.There were no allegations of mala fides or lack of bonafides as against the Selection Board or its Members or withrespect to the manner in which the subsequent stages ofselection were held or with regard to the computation ofnormalization score or the normalization method and formulaadopted by the Selection Board.

b.The expression “marks” as used in Rule 15 (b) of theRecruitment Rules must be construed as “raw marks”.

c.Rule 15 (b) dealt with eligibility condition and a candidatefailing to obtain 50% “raw marks” in each of the subjectswould not be eligible for recruitment.

d.Only those candidates who were successful in writtenexamination under clause (b) of Rule 15 that is to say whohad obtained more than 50% “raw marks” were eligible toappear in the further stages of scrutiny of documents andphysical efficiency test.

e.The expression “marks obtained by each candidate in writtenexamination under clause (b)” as appearing in Sub-rule (e)of Rule 15 must be understood and construed as “normalizedscore”. In other words, the process of normalization couldbe applied only for preparing the select list after all stages A

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Aof examination contemplated under Sub-rules (b), (c) and(d) were over.

f.The Selection Board was not competent to adopt the processof normalization at Rule 15(b) stage and such conduct onpart of the Selection Board amounted to re-writing oramending the mandatory rule.

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In the light of these conclusions, the directions passed by the SpecialDivision Bench required the concerned authorities to rule out thecandidature of those who had failed to obtain 50% “raw marks” in eachsubject and then to prepare the select list in order of merit usingC“normalized score”.

16. Relying on the aforestated decision of the Special DivisionBench at Allahabad, the Special Division Bench at Lucknow disposedof all the matters pending before it namely SS No.6540 of 2019 andconnected matters (Manish Kumar Yadav and others vs. State of UttarDPradesh and others) by its order dated 18.10.2019. Said order of theSpecial Division Bench at Lucknow was challenged in Special LeavePetition (C) Diary No.39931 of 2019 (Ajay Singh v. Manish KumarYadav and 49 others). The Special Leave Petition was rejected summarilyby this Court by its order dated 18.11.2019 as under:- E “Application for permission to file Special Leave Petition isallowed.

Heard learned counsel for the parties.

The Special Leave Petition is dismissed.

Pending applications stand disposed of.”F

17. State of Uttar Pradesh and some of the candidates beingaggrieved by the judgment and order dated 11.09.2019 passed by theSpecial Division Bench at Allahabad have challenged the decision byfiling Special Leave Petitions from which the instant appeals arise. In itsorder dated 28.02.2020, this Court directed the State and the Board asGunder:

“We direct the State and the Board to file appropriate affidavitsindicating:

(a) How many candidates had secured minimum 50% of marksHbefore the normalization process was applied and who were also found to be eligible in the subsequent two stages namely scrutinyof documents and physical standard test.

(b) How many candidates were found to have secured minimum50% marks after normalization process was applied and who werealso found to be eligible in the subsequent two stages namelyscrutiny of documents and physical standard test.

In other words, the number of candidates who were found eligiblewithout resorting to normalization and after taking resort tonormalization, must be available.

(c) Out of these two lists, which are the common names whoirrespective of, whether normalization is applied or not would stillbe qualified.

(d) The affidavit shall also indicate the current vacancy positioncategory-wise and how many seats were actually advertised tobe available in the current selection process.

Let the exercise be done within next four days and appropriateaffidavits be filed on or before 5.3.2020.

Pending further consideration, there shall be stay of proceedingsin any contempt filed in relation to the present matter.”

18. Accordingly, an affidavit was filed on behalf of the State andthe Board placing on record the factual information as under:

“3. That for recruitment of Sub Inspector Civil Police andequivalent post of direct recruitment 2016, 2400 posts of SubInspector Civil Police, 210 posts of PAC Platoon Commander, 97posts of Fire Service Second Officer regarding Male candidatesand 600 posts of Sub Inspector Civil Police regarding female havebeen advertised separately for male and female vide notificationdated 17-06-2016 respectively. Against the said advertisement total630926 online applications (Male 542124 & Female 88802) havebeen received. Out of which total 364539 candidates (Male 317828& Female 46711) have participated in the written examination.

4. That 9158 male candidates had secured 50% of marks in eachsection/ subject before the normalization process was applied.Out of these 9158 candidates, 7930 candidates were present/appeared in DV/ PST (Document Verification and Physical A

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Standard Test-Height/ Chest) and 1181 remain absent. Out ofthese 7930 candidates, 7603 were qualified in DV/PST. 5723candidates out of 7603 were qualified in Physical Efficiency Test(Running).

In addition to above, it has to be clarified that 47 male candidateswere qualified before normalization as per instructions of Hon’bleHigh Court, Allahabad, they were awarded extra marks for twowrong questions but they could not be called for DV/ PST becausethey could not qualify in normalized marks as by that time theselection result was being prepared on the basis of only normalizedmarks.

5. That 501 female candidates had secured minimum 50% of marksin each section/ subject before the normalization process wasapplied. Out of these 501 female candidates, 448 candidates werepresent/ appeared in DV/ PST (Document Verification andPhysical Standard Test-Height/ Weight) and 53 candidatesremained absent. Out of 448 candidates, 441 were qualified inDV/ PST and 348 candidates out of 441 candidates were qualifiedin Physical Efficiency Test (Running).

6. That 5229 male candidates had secured minimum 50% of marksin each section/ subject after the normalization process wasapplied. Out of these 5229 candidates 4452 candidates werepresent/ appeared in DV/ PST (Document Verification andPhysical Standard Test-Height/ Chest) and 777 candidatesremained absent. Out of 4452 candidates, 4261 were qualified in DV/ PST and 3148 candidates were qualified in PhysicalAEfficiency Test (Running) out of these 4261.

7. That 484 female candidates had secured minimum 50% of marksin each section/ subject after the normalization process wasapplied. Out of these 484 candidates 400 candidates were present/appeared in DV/ PST and 84 candidates remained absent. Out of400 candidates, 395 were qualified in DV/ PST. 309 candidateswere qualified in Physical Efficiency Test (Running) Out of 395candidates.

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8. That in the male category 3899 names are common. Out ofwhich finally 2498 candidates were qualified in PET (Running)

9. That in the female category 352 names are common. Out ofwhich finally 246 candidates were qualified in PET (Running)

10. That the position of unfilled vacancies is as follows: Aftercompletion of this section process 821 posts are unfilled/ vacantdue to non-availability of suitable candidates.

(a) Category wise unfilled posts in Males-526

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(b) Category wise unfilled posts in Females-295

11. That the said online written examination, scrutiny of documentand Physical Efficiency Test has been got conducted by highlycertified undertaking NSEIT’s Ltd. a Government of Indiaundertaking and the information in respect of present affidavithas been supplied by the said executing agency NSEIT’s Ltd.which is entirely transparent and non-discriminatory.”

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19. As some of the respondents were not served, the subsequentorder dated 28.07.2020 passed by this Court directed the StateGovernment to publish appropriate advertisement in two newspapershaving wide circulation in the State i.e. one in vernacular language andother in English, indicating that the judgment and order dated 11.09.2019Fpassed by the High Court was under challenge in this Court and that anyperson interested in supporting said judgment could appear either in-person or through his counsel. It was also observed that in any case,those respondents who were served in the matters and were beingrepresented by number of learned counsel, would be taken to berepresenting the interest of all the concerned respondents.G

Accordingly, the advertisements were published by the State andcompliance affidavit was filed in the Registry of this Court. The matterswere thereafter directed to be placed for final disposal.

20. In these appeals, Mr. Vinod Diwakar, learned AdditionalAdvocate General advanced submissions on behalf of the State. Mr.H

STATE OF UTTAR PRADESH v. ATUL KUMAR DWIVEDI[UDAY UMESH LALIT, J.]

P.S. Patwalia, Dr. A.M. Singhvi, Mr. Vikas Singh, Mr. Vinay Navare,learned Senior Advocates and Mr. Amit Pawan and Mr. Shoeb Alam,learned Advocates in that order, advanced submissions on behalf of theconcerned candidates supporting the State. The arguments on the partof the respondents were advanced by Mr. Rakesh Dwivedi, Mr. KapilSibal, Mr. V. Giri, Ms. V. Mohana, Ms. Vibha Datta Makhija, Mr. PallavShishodia, learned Senior Advocates and Ms. Bansuri Swaraj and Mr.Anand Verma, learned Advocates, in that order. Both sides placedreliance on some of the instances highlighting the effects of normalization.

21. The submissions advanced in support of the appeals were:

(a) Expression “marks” could not be given different meaningor connotation at two different stages of the processcontemplated by Rule 15 of Recruitment Rules. Rules 15(b)and 15(e), being part of the same Rule and part of the sameprocess, must carry the same meaning for expression“marks” at both the places.

(b) By very nature of having the written examination in 29sessions, some of the papers were tougher while some weremuch simpler or easier and therefore there was a necessityto put all the candidates on an even keel. Thus, the processof normalization was rightly adopted at the threshold, thatis to say, at the level contemplated by Rule 15(b) ofRecruitment Rules.

(c) Considering the large number of candidates, even beforethe process had begun, the State had made it quite clearthat the process of normalization would be adopted. Thus,the action on the part of the State was completely fair andtransparent.

(d) In any case, as found by the High Court, there was noteven an allegation of mala fides or absence of bona fidesin the action on part of the State.

(e) If the process of normalization was not adopted at the initialstage, some of the rightful claimants and candidates wouldhave got eliminated at the initial stage though uponnormalization they had easily qualified.

(f) The equality doctrine under Article 14 of the Constitutionwould postulate that unequals ought not to be treated equally.

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AIf the degree of difficulty in the question papers otherwisedemanded normalization being adopted, postponing theprocess of normalization to the stage of Rule 15(e) ofRecruitment Rules would only result in an unfair treatmentas against those who by sheer coincidence had to answertougher question papers.

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(g) The decision of this Court in Sanjay Singh & Anr. v. U.P.Public Service Commission, Allahabad & Anr.[5 ]had foundthat moderation would be permissible and it was only in thepeculiar fact situation of case that scaling down ornormalization was not found to be permissible.C

(h) Wherever large number of candidates appear at theexamination and wherever multiple number of questionpapers are utilized, a process such as, equalisation,normalization or standardisation or scaling would alwaysbe applied so that all the candidates are judged or tested onDparameters equal to all.

(i) It was not the submission of the original writ petitionersthat the process of normalization could never be adopted.All that they contended was that the stage of normalizationought to be postponed to the state of Rule 15(e).E

(j) The normal approach in service jurisprudence, where theextent of judicial review is limited, is to give maximum leewayto the concerned authorities so long as their actions are fairand transparent, uniform in application and without any malafides.F22. On the other hand, the submissions advanced on behalf of thewrit petitioners who had succeeded in the High Court, were:

(a) A candidate should always be made well aware of theminimum percentage that he would be required to obtain inorder to be eligible for further stages of the selection. TheGcut off at 50%, therefore, had to be reckoned as againstthe written examination that a candidate was required toundertake. The parameters ought to be clear and welldefined rather than being susceptible to any change or H5 (2007) 3 SCC 720.

modification depending upon the level of difficulty that theother candidates were required to face.

(b) At the initial stage, that is to say, at Rule 15(b) level whatwas required was minimum 50% out of maximum marksallocable for such written examination. In other words, thecandidate was to be competing against himself and hisperformance was not to be judged in comparison to that ofothers in order to be eligible.

(c) What Rule 15(b) required was fifty “percent” of marksand not that the candidate ought to be in fifty “percentile”.

(d) At the Rule 15(b) stage, a specific and known target wouldbe required to be met by the candidate in order to enablehim to reach the next level and as such marks required atthat stage ought to be “raw marks” and not any “normalizedscore”.

(e) The “normalized score” would be a measure to compareinter se performance or level of the candidates andtherefore, ought to be relied upon only for deciding the interse merit position amongst candidates and not to disqualifythose who had secured more than 50% “raw marks”.

(f) Since Rule 15(b) required a candidate “to obtain 50% marksin each of the subjects”, the requirement was rightlyconstrued by the High Court to be 50% “raw marks”.

(g) Obtaining of 50% “raw marks” being a condition of eligibilitystipulated by the rule making authority, the Board as a sub-delegate, was not competent and justified in modifying therequirement.

(h) In the process of normalization, what factors would beconsidered were never known to the candidates at thebeginning of the selection process. All that they were madeaware was that they had to obtain 50% marks in the writtenexamination. What they had actually obtained, could nothave been altered by any artificial process such asnormalization resulting in disqualification of the candidates.

(i) A candidate was required to appear for the written test of400 marks comprising of four subjects, all of which had to A

B

C

D

E

F

G

H

be answered in one session as part of the same questionpaper. It was quite possible that questions regarding one ofthose said four subjects were tougher while the othersubject/subjects were much simpler. It was the sum totalof the entire paper that a candidate was required to faceand answer in one session. A candidate could as well havedevoted more time to solve tougher questions. Thus, by verynature of examination, it was difficult to adopt the processof normalization at the initial stage and thereby hold someof the candidates to be ineligible.

A

B

(j) The instant matters were rightly found by the High CourtCto be covered by the decision of this Court in SanjaySingh’s[5 ]case.

(k) The decision of the High Court, in any case, stood affirmedby dismissal of Special Leave Petition (C) Diary No.39931of 2019.

D

23. At the outset, we must consider the effect of dismissal ofSpecial Leave Petition (C) Diary No.39931 of 2019. It was a summarydismissal at the admission stage and the order does not disclose anyreasons why the challenge was negated. The challenge was also not atthe instance of the State.

E

In P. Singaravelan and others vs. District Collector, Tiruppurand DT and others[6], it was observed by this Court:- “6. It is evident that all the above orders were non-speaking orders,inasmuch as they were confined to a mere refusal to grant specialleave to appeal to the petitioners therein. At this juncture, it isFuseful to recall that it is well-settled that the dismissal of an SLPagainst an order or judgment of a lower forum is not an affirmationof the same. If such an order of this Court is non-speaking, it doesnot constitute a declaration of law under Article 141 of theConstitution, or attract the doctrine of merger. The followingdiscussion on this proposition in Kunhayammed v. State of Kerala[7],Gis relevant in this regard: (SCC pp. 383-84, para 44)

“(i) Where an appeal or revision is provided against an orderpassed by a court, tribunal or any other authority before superior 6 (2020)3 SCC 133H7 (2000)6 SCC 359

forum and such superior forum modifies, reverses or affirmsthe decision put in issue before it, the decision by the subordinateforum merges in the decision by the superior forum and it isthe latter which subsists, remains operative and is capable ofenforcement in the eye of the law.

(ii) The jurisdiction conferred by Article 136 of the Constitutionis divisible into two stages. The first stage is up to the disposalof prayer for special leave to file an appeal. The second stagecommences if and when the leave to appeal is granted and thespecial leave petition is converted into an appeal.

(iii) The doctrine of merger is not a doctrine of universal orunlimited application. It will depend on the nature of jurisdictionexercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall bedeterminative of the applicability of merger. The superiorjurisdiction should be capable of reversing, modifying oraffirming the order put in issue before it. Under Article 136 ofthe Constitution the Supreme Court may reverse, modify oraffirm the judgment-decree or order appealed against whileexercising its appellate jurisdiction and not while exercisingthe discretionary jurisdiction disposing of petition for specialleave to appeal. The doctrine of merger can therefore be appliedto the former and not to the latter.

(iv) An order refusing special leave to appeal may be anon-speaking order or a speaking one. In either case itdoes not attract the doctrine of merger. An order refusingspecial leave to appeal does not stand substituted in placeof the order under challenge. All that it means is that theCourt was not inclined to exercise its discretion so as toallow the appeal being filed.

(v) If the order refusing leave to appeal is a speaking order i.e.gives reasons for refusing the grant of leave, then the orderhas two implications. Firstly, the statement of law contained inthe order is a declaration of law by the Supreme Court withinthe meaning of Article 141 of the Constitution. Secondly, otherthan the declaration of law, whatever is stated in the order arethe findings recorded by the Supreme Court which would bindthe parties thereto and also the court, tribunal or authority in A

B

CD

E

F

GH

any proceedings subsequent thereto by way of judicial discipline,the Supreme Court being the Apex Court of the country. But,this does not amount to saying that the order of the court, tribunalor authority below has stood merged in the order of the SupremeCourt rejecting the special leave petition or that the order ofthe Supreme Court is the only order binding as res judicata insubsequent proceedings between the parties.

A

B

(vi) Once leave to appeal has been granted and appellatejurisdiction of the Supreme Court has been invoked the orderpassed in appeal would attract the doctrine of merger; the ordermay be of reversal, modification or merely affirmation.

C

(vii) On an appeal having been preferred or a petition seekingleave to appeal having been converted into an appeal beforethe Supreme Court the jurisdiction of the High Court to entertaina review petition is lost thereafter as provided by sub-rule (1)of Order 47 Rule 1 CPC.”

D

(emphasis supplied)

This view has also been adopted in a plethora of decisions ofthis Court, including the recent decision in Khoday DistilleriesLtd. v. Sri Mahadeshwara Sahakara Sakkare KarkhaneLtd.[8]

E

7. Applying these observations to the present case, it is clear thatthere has been no pronouncement by this Court constituting thelaw of the land as to the interpretation of GOMs No. 162. In sucha situation, it is open for us to proceed to decide the instant appealsuninfluenced by the prior orders of this Court dismissing SLPsFagainst the grant of relief to drivers placed similarly as theappellants herein.”

To similar effect are the observations in C.G. Govindan v. Stateof Gujarat and others[9], U.P. State Road Transport Corporationthrough its Chairman v. Omaditya Verma and others[10 ]and State ofOrissa and another v. Dhirendra Sundar Das and others[11]. We,therefore, reject the submission.

G

8 (2019) 4 SCC 3769 (1998) 7 SCC 62510 (2005) 4 SCC 424H11 (2019) 6 SCC 270

24. We now proceed to consider the issues arising in these matters.

25. In State of Uttar Pradesh, the matters concerning selection,promotion, training, appointment, determination of seniority andconfirmation of service of Sub-Inspectors and Inspectors in Uttar PradeshCivil Police were dealt with by the Uttar Pradesh Sub-Inspectors andInspectors (Civil Police) Service Rules, 2008 (“2008 Rules”, for short)which were framed in exercise of powers conferred under Section 46(2) read with Section 2 of the Police Act, 1861.

Part V of 2008 Rules dealt with “Procedure for Recruitment”and Rule 15 from said Part V was to the following effect:

“15. For the purpose of direct recruitment to the post of Sub-Inspector, there shall be representation to the Scheduled Castes/Scheduled Tribes and other Backward classes of citizen inSelection Committee shall be made in accordance with the ordermade under section-7 of the Act, as amended from time to time.

(a) Applications-

(i) A candidate shall fill the application Form from oneDistrict only. Regarding allocation of Examination Centre thecandidate may give more than one option. However Board mayallocate centre other than those indicated by the candidate;

(ii) a separate booklet shall be attached with the applicationForm containing the information regarding educational qualification,age, minimum qualifying standards for each category of PhysicalStandard Test, Physical Efficiency Test, Medical Fitness, Minimumqualifying marks for Written Examination subject wise, copy ofO.M.R. sheet for practice and other important guidelines;

(iii) the application Form is on the O.M.R. sheet with carboncopy;

(iv) the space for candidate’s both left and right thumbimpression is provided in the application Form; two attestedphotographs of the candidate be pasted on application Form onephoto on the application Form and one photo on the admissioncard are to be pasted at proper places.

(v) it is essential that every application Form mustaccompany with the attested copes of the certificates of age 10[th], A

B

C

D

E

F

G

H

A

B

C

D

E

G

H

12[th] and Graduation/ Post Graduation, Sports Certificate, NationalCadet Corps Certificate, Home Guard Certificate, CasteCertificate, Unit discharge Certificate in case of Ex-servicemenand Certificate of Dependent of Freedom Fighters as the casemay be.

(vi) Application Form can be purchased on payment ofprescribed fees from notified Post Office/ Bank.

(vii) Duly filled up application Forms should be submitted inthe same Post Office/ Bank from where it is so purchased.

(b) Call letters:-

All the certificates, submitted by the candidate will beexamined before issuance of the call letter. If a certificate is shownto be submitted in the Application Form but not found attachedwith it, the Application Form of the candidate may be cancelled.After getting the Application Form scanned through computer,computerized call letter will be issued to eligible candidates throughthe same Post Office/ Bank from where Application Form wassubmitted. Code/ Name/ Postal address/ Place of the examinationcentre along with the date and time of the Physical Standard Test,Physical Efficiency Test and medical examination will be clearlymentioned in the call letter. Documents with which the candidatesare required to reach for the examination will be clearly indicatedin the call letter. Call letter should reach at least a week beforethe examination. In case call letter is not received till a weekbefore beginning of the examination candidates may contacthelpline, serial code of the Application Form will have to be givenin this regard. Duplicate call letter will be issued by the Board.

(c) Physical Standard Test:-

All eligible Candidates to appear in a qualifying standardfor Physical Standard Test of a qualifying nature the procedurefor which is given in Appendix-1.

(d) Preliminary Written Test-

The Candidates who are declared successful in the PhysicalStandard Test under clause (c) shall be required to appear in anobjective type/ Preliminary Written Test of qualifying nature. Thistest shall carry 200 marks.

It shall comprise three sections, namely General Knowledge(Current Affairs, History, Geography, Constitution of India,Freedom Struggle etc.) of 100 marks. Numerical Ability Test of50 marks and Reasoning of 50 Marks. The candidate who securea minimum fifty percent marks in the said test shall be declaredsuccessful.

A

B

(e) Physical Efficiency Test-

The candidates who are declared successful in thepreliminary written test under clause (d) shall be required to appearin a Physical Efficiency Test of qualifying nature. This test shallbe of the level of National Physical Efficiency Standard Star-I.The Board shall be empowered to change or upgrade the standardsof the said test which shall, in no case, be lesser than the prescribedstandards of Star-I. The procedure for conducting the PhysicalEfficiency Test shall be such as prescribed in Appendix-2.

C

(f) Main Written Examination-

D

C

(f) Main Written Examination-

D

The candidates who are declared successful in the PhysicalEfficiency Test under clause (e) shall be required to appear in themain written examination which shall carry 400 marks in thefollowing subjects:-

4. Mental Aptitude Test/ I.O.

Test/ Reasoning

Note: The procedure for conducting written examination shall besuch as prescribed as Appendix-3

G

The Candidate who fails to obtain minimum fifty percentmarks in each subject shall not be eligible for recruitment. TheBoard shall, having regard to the need for securing duerepresentation of the candidates belonging to the ScheduledCastes, Scheduled Tribes and others under Rule 6, prepare a listof successful candidates on the basis of marks obtained by them H

in the Main Written Examination, the entire list along with marksobtained per subject along with answer key would be displayedon the Board’s website immediately. The number of candidatesto be selected in the main written examination shall be three timethe number of vacancies.

A

B(g) Medical Examination-

The candidates who have passed the Main WrittenExamination will undergo the Medical Examination test shall besuch as prescribed in Appendix-3.

(h) Group Discussion:

C

The candidates selected under the rule 15(f) shall be requiredto appear in a Group Discussion for which separate groups of tencandidates each shall be formed. The process of Group Discussionshall be carried out under the supervision of a panel comprisingManagement Expert, Psychologist and Criminologist in thepresence of Chairman of the Board or his nominee, one AdditionalDirector General of Police nominated by Director General ofPolice, Uttar Pradesh). In the said Group discussion, Police CaseStudy shall be presented for discussion and the entire Groupdiscussion shall be completed within the stipulated timeframe. TheGroup Discussion shall carry 20 marks and it will include theevaluation of candidates Management Skill (5 marks), Presentation(5marks), Attitude (5 marks) and Personality (5 marks). Thesemarks shall also be uploaded in the Board’s website.

D

E

NOTE 1-The entire process of Group Discussion shall be video-graphed and a CD thereof shall be prepared.

F

NOTE 2-Nomination of officers for giving presentation to theScheduled Castes, Scheduled Tribes and OtherBackward Classes of Citizens in the SelectionCommittee shall be made in accordance with Section7 of the Act, as amended from time to time.

G

NOTE 3-The procedure for conducting written examinationshall be such as prescribed in Appendix-3.

(i) Selection and Merit List-

The marks obtained by each candidate in the MainWritten Examination under Rule 15 (f) shall be added to H

the marks obtained by him in the Group Discussion underRule 15 (h).

(j) The Board shall prepare a select list of candidates in orderof their merit, keeping in view the reservation policyguidelines as disclosed by the aggregate of marks obtainedby each candidate at the main written examination andGroup Discussion. If two or more candidates obtain equalmarks, the candidate obtaining higher marks in the mainwritten examination shall be placed higher in the list. TheBoard will upload the Select List on website for all candidatesimmediately and shall forward it to the Head of theDepartment.

25.1 Appendix 3 to 2008 Rules dealt with the procedure for writtenexamination which was as under:

“Procedure for Written Examination

All the candidates will have to undergo for a Physical EfficiencyTest before the main Written Examination (In the case of directrecruitment of Sub-Inspector). On the pattern of Union PublicService Commission, computerised call letters with pastedphotographs will be sent to candidates for main WrittenExamination through the Post Offices/Banks in the manner it weresent for preliminary examination.

(a) Photograph, thumb impressions of both the hands and codenumber/name of the examination centre, postal address, date/timeof the examination along with the name of the District will beclearly provided in the call letter.

(b) Call letter should reach to the candidates at least a week beforethe date of the examination. In case call letter is not received aweek before the date of the examination the candidate may contactthe helpline/landline/mobile phones of the Board or can obtain theduplicate call letter by contacting the Board’s website.

(c) Written examination will be conducted on same day at thesame time throughout the State.

(d) Candidates will be provided OMR sheet with carbon copy inthe examination hall. Candidate can carry the carbon copy withhim after the examination. When the result of all the candidates is A

B

C

DE

F

G

H

Adeclared the result will be uploaded along with answer key onBoard’s website with marks obtained by them subject wise. Thecandidates can check his marks from the website as per OMR(carbon copy) answer sheet.

(e) After the written examination is over answer sheets will beBsent to the Board, centre-wise in sealed covers through the safecustody provided by the District Magistrate/Senior Superintendentof Police/Superintendent of Police.”

26. 2008 Rules were, however, amended by the Uttar PradeshSub-Inspector and Inspector (Civil Police) Service Rules, 2015 on 19[th]CAugust 2015 and by the Uttar Pradesh Sub-Inspector and Inspector(Civil Police) Service (First Amendment) Rules, 2015 on 03[rd] December2015. Rule 15 of the Amended Rules (‘Recruitment Rules’, for short)dealing with procedure for direct recruitment to the post of Sub-Inspectorhas been quoted in the judgment under appeal. It must be noted herethat Appendix 3 referable to earlier Rule 15(e) dealing with “ProcedureDfor Written Examination”, was deleted by virtue of the amendment.

27. Rule 15 of 2008 Rules, as it stood before the amendments,thus contemplated :-

(i) Scrutiny/examination of certificates submitted by theEcandidates along with their application formed the first step,whereafter, call letter would be issued to the candidates;

(ii) All candidates were required to appear in the physicalstandard test and only those who were successful, wouldappear in an objective type preliminary written test; F(iii)Those who secured minimum 50% marks in the preliminarywritten test, would appear in physical efficiency test whichwas of qualifying nature. Those who qualified at that stagewould then be required to appear in the main writtenexamination; G(iv)As per Rule 15(f), the procedure for conducting the writtenexamination was to be in terms of Appendix 3. In terms ofsaid Appendix, the written examination had to be conductedon the same date at the same time throughout the State. Alist of successful candidates who obtained minimum 50%marks would then be prepared.

H

(v) Thereafter, there would be medical examination in termsAof Rule 15 (g).

(vi) Finally, there would be group discussion carrying 20 marks.

(vii) The final selection and merit list would be based on themarks obtained by each candidate in the main writtenexamination and the marks obtained in the group discussion.

B

28. The steps and stages indicated in Rule 15 of 2008 Rules, havenow undergone substantial changes in that:- (a)After scrutiny of the application forms under Rule 15(a),all candidates are required to appear for written test of 400marks. Candidates found successful in written examinationwill then be required to appear at the stage of scrutiny ofdocuments and physical standard test in terms of Rule 15(c).

C

(b) Candidates failing to obtain 50% marks in each of thesubjects are not to be eligible for recruitment.

D

(c) Candidates found successful in the written examination arerequired to appear at the stage of scrutiny of documentsand physical standard test in terms of Rule 15(c).

(d) Those who succeeded at the previous stages will then haveto undergo physical efficiency test in terms of Rule 15(d).

E

(e) Finally at the stage of Rule 15 (e), from amongst thecandidates who are successful in physical efficiency test, aselect list of each category of candidates shall be preparedon the basis of marks obtained by each candidate in thewritten examination under clause (b).

F

(f) It is left to the Board to decide whether to conduct writtenexamination on one date in a single shift or in more thanone shift or on more than one date in different shifts withdifferent question papers.

G

(g) It is again left to the Board to decide the procedure forwritten examination which must be displayed on its ownwebsite.

29. Under the unamended provisions, the procedure for writtenexamination was laid down in Appendix 3, which had to be followed bythe Board while holding main written examination in terms of the then H

ARule 15(f). The procedure mandated that the main written examinationbe conducted on the same date and at the same time throughout theState.

That procedure now stands displaced and the amended provisionsnow confer the discretion upon the Board at two levels. Under the firstBpart, it is up to the Board to decide whether the written examination beconducted on the same date, same time and at the same place or it beconducted in more than one shift on the same date or on more than onedates in different shifts with different question papers. Secondly, theprocedure for written examination is also to be determined by the Boardbut it ought to be displayed on its own website.C

Going by the requirements of the amended Rule 15, the marksobtained in the written examination will now be the determining factorsubject to the candidates fulfilling or meeting the qualifying marks andqualifying at the stages in scrutiny of documents, physical standard testand physical efficiency test.D30. Considering the large number of candidates who had submittedonline application forms, a notification was published by the Board on28.06.2017 indicating:- a)That the written examination would be held on more thanEone date in different sittings along with different questionpapers.

b)Since the question papers of every sitting would be different,there would not be possibility of equality.

c)The exercise would require normalization of the marks byFusing standardized Equi-percentile Method. Such methodwould be as adopted in MAH-MBA/MMS CET 2015.

31. The exercise of issuing said notification and declaring the intentas stated above, were well within the powers of the Board in terms ofRule 15(b) as amended by the rule making authority. It was brought toGthe notice of the candidates well in advance before the writtenexaminations were to be conducted. In view of the large number ofcandidates, the written examinations were held in 29 different sittings orbatches with 29 different question papers. This necessarily implied andrequired the Board to adopt process of normalization in order to test themerit of the candidates on the same footing or parameter.H

The question that arises, however, is about the stage at which theprocess of normalization was required to be adopted or applied.

32. Before we go into the question, we must consider some of thedecisions of this Court which had dealt with the issues of scaling ornormalization.

33. In U.P. Public Service Commission v. Subhash ChandraDixit and others[12], the Public Service Commission had applied “scalingof marks” in circumstances noticed by this Court as under:-

“6. 4270 candidates appeared for the examination. For each ofthe subjects in the written examination, there were around 14examiners and each of them evaluated about 300 answer-sheets,except in language papers. U.P. PSC had earlier held similarexamination for Civil Judge (Junior Division) for selection ofJudicial Officers in 1997 and 1999. According to U.P. PSC, therewas wide disparity in awarding marks by the various examinersin respect of the same subject. The answer-sheets wererandomised before being given to examiners. The randomisationwas done at three stages, namely, at the stage of allotment of rollnumbers, allotment of centres and at the time of distribution ofanswer-sheets to the examiners for evaluation. U.P. PSC receivedrepresentation from several quarters to adopt a scientific methodof evaluation of marks awarded by different examiners in respectof common papers. It was noticed that the different examinersadopted different yardsticks to award marks to the candidates.Thus, the candidates were left at the whims of the examiners.The gross disparity between two sets of examiners resulted ininjustice to some of the candidates and therefore a check wasrequired. It was noticed that the marks awarded by two differentsets of examiners required to be scaled in accordance with certainuniversally accepted method. U.P. PSC considered the differentfacets of scaling system and appointed a three-member Committeeto carry out an in-depth study of the scaling system. The membersof this Committee consisted of Professors from reputeduniversities. U.P. PSC considered the recommendations made bythe Expert Committee and on 7-9-1996 accepted the report of theCommittee. U.P. PSC resolved to apply the formula of scalingand thereafter, it was made applicable to PCS Preliminary A

B

CDEFG

AExamination, 1996 and also in PCS Main Examination held in 1996.Considering the utility of the scaling system, U.P. PSC decided inits meeting on 13-10-1999 to apply the scaling pattern for all theexaminations conducted by it. In the case of Civil Judge (JuniorDivision) Examination, 2000, the answer-sheets were randomisedin order to avoid duplicity or any possible mischief. The marksBawarded by each examiner were considered and scaled inaccordance with the formula adopted by U.P. PSC. The saidformula was based on the opinion of experts on the subject andaccordingly, the result was published by U.P. PSC. The merit listpublished by U.P. PSC was challenged by the respondents in SLPC(Civil) No. 23723 of 2002 on the ground that the scaling systemadopted by U.P. PSC was confusing, arbitrary and without anyreasonable basis. It was alleged that arbitrary marks wereawarded to certain candidates in the name of scaling system toprovide undue favour to them. It was contended that U.P. PSChad not disclosed the guidelines and criteria adopted inDimplementing the scaling system and, therefore, it was arbitraryand unjustified. It was also contended that several candidates hadbeen awarded less than 40% marks without any basis whereasseveral other candidates who had secured lesser marks in thewritten tests were awarded more than 60% or 70% marks.”

E33.1 The relevant Rules were quoted in paragraphs 15 and 17 asfollows:- “15. Part VI Rule 19 deals with appointment, probation andconfirmation. Rule 19 reads as follows:-

“19. List of candidates approved by the Commission.—TheCommission shall prepare a list of candidates who have takenexamination for recruitment to the service in order of theirproficiency as disclosed by the aggregate marks finallyawarded to each candidate. If two or more candidates obtainequal marks in the aggregate, the Commission shall arrangethem in order of merit on the basis of their general suitabilityfor the service:

F

G

Provided that in making their recommendation, the Commissionshall satisfy itself that the candidate has obtained such anaggregate of marks in the written test that he is qualified by hisability for appointment to the service.”

H

… … …

17. Rule 51, which is relevant for the purpose reads as follows:

“51. The marksheets so obtained shall be opened on the lastday of interview and immediately thereafter the marks ofinterview/personality test shall be added to the marks obtainedby the candidates in the written examination. Thereafter, onthe basis of the totals so obtained, the merit list shall be preparedand placed before the Commission for final declaration of theresult:

Provided that the Commission may, with a view to eliminatingvariation in the marks awarded to candidates at any examinationor interview, adopt a method, device or formula which theyconsider proper for the purpose.”

33.2 The discussion on the point was:-

“19. The question, therefore, that arises for consideration iswhether the U.P. Public Service Commission can adopt the scalingsystem by invoking the power conferred under Rule 51 of the1976 Amendment Act in view of Rule 19 contained in theNiyamavali, 1951. Of course, Niyamavali, 1951 was made by theGovernor in consultation with the U.P. Public Service Commissionand the High Court of Judicature at Allahabad by virtue of thepowers conferred by Article 234 of the Constitution whereas theprovisions of the 1976 (sic 1974) Act are general guidelines forthe U.P. Public Service Commission, it is not an enactment madein consultation with the High Court. Nevertheless, the provisionsof the 1976 (sic 1974) Act are applicable for the purpose ofconducting examination for recruitment of Judicial Officers in theState of Uttar Pradesh. The expression “aggregate marks” usedin Rule 19 of the Niyamavali, 1951 can only be construed as thefinal marks awarded after the scaling system is applied. Certainly,the proviso to Rule 51 gives ample power to the Commission toadopt any method, device or formula to eliminate any variation inthe marks awarded to the candidates. The various provisionscontained in the 1974 Act deal with the method and manner inwhich the examinations are to be conducted. The Niyamavali,1951 deals with only general provisions regulating recruitment tothe posts and the conditions of service. The Niyamavali, 1951does not deal with the method and the manner in which theexaminations are to be conducted. Various steps and procedures A

B

C

D

EF

G

H

A

B

C

D

E

F

G

H

have to be adopted in completing the recruitment for which detailedprocedure has been laid down. This procedure is not part of theNiyamavali, 1951.

20. We do not think that the proviso to Rule 51 is in any way inconflict with Rule 19 of the Niyamavali, 1951. The aggregatemarks can only be considered to mean the total marks finallyobtained by the candidate after the complete valuation process isover. The dictionary meaning of “aggregate” is thus: (i) a wholeformed by combining several disparate elements; (ii) the totalscore of a player or team in a fixture comprising more than onegame or round; and (iii) formed or calculated by the combinationof many separate units or items.

… … …

… … …

31. There is a vast percentage difference in awarding of marksbetween each set of examiners and this was sought to beminimised by applying the scaling formula. If scaling method hadnot been used, only those candidates whose answer-sheets wereexamined by liberal examiners alone would get selected and thecandidates whose answer-sheets were examined by strictexaminers would be completely excluded, though the standard oftheir answers may be to some extent similar. The scaling systemwas adopted with a view to eliminate the inconsistency in themarking standards of the examiners. The counsel for therespondents could not demonstrate that the adoption of scalingsystem has in any way caused injustice to any meritoriouscandidate. If any candidate had secured higher marks in the writtenexamination, even by applying the scaling formula, he would stillbe benefited.

32. The Division Bench of the High Court observed that theprocess of scaling was done examinerwise only and the scalingformula did not take into consideration the average of mean of allthe candidates in one particular paper but took the mean of onlythat group of candidates which has been examined by one singleexaminer. The counsel for U.P. PSC submitted that the observationmade by the High Court is incorrect. The scaling formula wasadopted to remove the disparity in the evaluation of 14 examinerswho participated in the evaluation of answer-sheets and the detailshave also been furnished as to how the scaling formula was adopted and applied. Therefore, we do not think that the observation ofthe Division Bench that the Commission did not take care of varyingstandards which may have been applied by different examinersbut has sought to reduce the variation of the marks awarded bythe same examiner to different candidates whose answer-sheetshad been examined, is correct. The Division Bench was of theview that as a result of scaling, the marks of the candidates whohad secured zero marks were enchanced to 18 and this was illegaland thus affected the selection process. This finding is to beunderstood to mean as to how the scaling system was applied. 18marks were given notionally to a candidate who secured zeromarks so as to indicate the variation in marks secured by thecandidates and to fix the mean marks.

33. In that view of the matter, we do not think that the applicationof scaling formula to the examinations in question was eitherarbitrary or illegal. The selection of the candidates was done in abetter way. Moreover, this formula was adopted by U.P. PSCafter an expert study and in such matters, the court cannot sit injudgment and interfere with the same unless it is proved that itwas an arbitrary and unreasonable exercise of power and theselection itself was done contrary to the Rules. Ultimately, theagency conducting the examination has to consider as to whichmethod should be preferred and adopted having regard to themyriad situations that may arise before them.”

34. The basic facts in Sanjay Singh[5 ]were noticed by this Courtas under:- “2. On the request of the Allahabad High Court, to conduct theexamination for filling 347 posts of Civil Judge (Junior Division),the Commission issued an advertisement in EmploymentNews dated 28-11-2003. As many as 51,524 candidates appearedfor the “U.P. Judicial Service, Civil Judge (Junior Division)Preliminary Examination, 2003” conducted by the Commissionon 21-3-2004. The preliminary examination was of “objective”type consisting of two papers — General Knowledge and Law.The result was declared on 30-6-2004 and 6046 candidates weredeclared qualified to appear for “U.P. Civil Judge (Junior Division)Examination (Main), 2003” which was of “descriptive”(conventional) type. The main examination consisted of five papers AB

C

D

E

F

G

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A(each carrying 200 marks) — General Knowledge, Language,Law I, II and III — and was held between 5-10-2004 and 7-10-2004. The number of candidates who took the said examinationwas 5748.

3. The answer-scripts relating to each subject were distributed toBseveral examiners for valuation, as it was not possible to get thelarge number evaluated by a single examiner. The number ofexaminers, to whom the answer-scripts were distributed forvaluation, were as follows: General Knowledge-18, Language-14, Law I-11, Law II-10, and Law III-14. The marks assigned bythe examiners were subjected to “statistical scaling” and the resultsCof written examination based on such scaled marks, were declaredon 7-3-2005. Thereafter, 1290 candidates were interviewedbetween 14-4-2005 and 26-4-2005. After such interview, theCommission declared the final results of the examination on 1-5-2005 based on the aggregate of “scaled marks” in the writtenD(main) examination and the marks awarded in the interview. Onthe recommendations made by the Commission, appointments weremade to 347 posts of Civil Judge, Junior Division.”

34.1 This Court was called upon to consider the correctness of“Scaling System” adopted by the Public Service Commission. ConsideringEthe text of U. P. Judicial Service Rules, 2001, this Court concluded thatthe “Scaling System” was unsuited in regard to Civil Judge (JuniorDivision) Examination. It was noticed that in the earlier decision inSubhash Chandra Dixit and Ors.[12] this Court had upheld scaling andhad ruled that scaling was a recognized method to bring raw marks indifferent subjects to a common scale. It was, however, found that thereFwas no provision in Judicial Service Rules akin to proviso to Rule 51 ofthe Public Service Commission Procedure Rules.

The relevant discussion on the point was:- “17. It is no doubt true that the Judicial Service Rules govern theGrecruitment to Judicial Service, having been made in exercise ofpower under Article 234, in consultation with both the Commissionand the High Court. It also provides what examinations should beconducted and the maximum marks for each subject in theexamination. But the Judicial Service Rules entrust the functionof conducting examinations to the Commission. The Judicial ServiceHRules do not prescribe the manner and procedure for holding the examination and valuation of answer-scripts and award of thefinal marks and declaration of the results. Therefore, it is for theCommission to regulate the manner in which it will conduct theexamination and value the answer-scripts subject, however, tothe provisions of the Judicial Service Rules. If the Commissionhas made Rules to regulate the procedure and conduct of theexamination, they will naturally apply to any examinationconducted by it for recruitment to any service, including the JudicialService. But where the Judicial Service Rules make a specificprovision in regard to any aspect of examination, such provisionwill prevail, and the provision of the PSC Procedure Rules, to theextent it is inconsistent with the Judicial Service Rules, will beinapplicable. Further, if both the Rules have made provision inregard to a particular matter, the PSC Procedure Rules will yieldto the Judicial Service Rules.

18. The manner in which the list of candidates as per merit shouldbe prepared is provided both in the Judicial Service Rules and thePSC Procedure Rules. Relevant portion of Rule 20(3) and Note(i) of Appendix II of the Judicial Service Rules and Rule 51 of thePSC Procedure Rules providing for the aggregation of marks andpreparation of the merit list, are extracted below:

(different emphasis supplied)

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As the field is occupied by Rule 20(3) and Note (i) of Appendix IIof the Judicial Service Rules, they will prevail over the generalprovision in Rule 51 of the PSC Procedure Rules.

19. Rule 20(3) provides for the final list of selected candidates inorder of their proficiency as disclosed by the aggregate of “marksfinally awarded to each candidate in the written examinationand the interview”. Note (i) to Appendix II of the Judicial ServiceRules provides that the “marks obtained in the interview” will beadded to “the marks obtained in the written papers” and thatthe candidate’s place will depend on the aggregate of both. Thoughthe Judicial Service Rules refers to “marks finally awarded”, thesaid Rules do not contain a provision similar to the proviso to Rule51 of the PSC Procedure Rules, enabling the Commission to adoptany method, device or formula to eliminate variation in the marks.It is not possible to read the proviso to Rule 51 or words to thateffect into Rule 20(3) or Note (i) of Appendix II of the JudicialService Rules. It is well settled that courts will not add words to astatute or read into the statute words not in it. Even if the courtscome to the conclusion that there is any omission in the wordsused, it cannot make up the deficiency, where the wording as itexists is clear and unambiguous. While the courts can adopt aconstruction which will carry out the obvious intention of thelegislative or the rule-making authority, it cannot set at naught thelegislative intent clearly expressed in a statute or the rules.Therefore, Rule 20(3) and Note (i) of Appendix II have to beread as they are without the addition of the proviso to Rule 51 ofthe PSC Procedure Rules. If so, what can be taken into accountfor preparing final list of selected candidates, are “marks finallyawarded to a candidate” in the written examination and theinterview. The marks assigned by the examiner are not necessarilythe marks finally awarded to a candidate. If there is any error inthe marks awarded by the examiner it can always be correctedby the Commission and the corrected marks will be “the finalmarks awarded to the candidate”. Where the Commission is ofthe view that there is “examiner variability” in the marks (due tostrict or liberal assessment of answer-scripts) or improperassessment on account of erratic or careless marking by anexaminer, they can be corrected appropriately by moderation. Themoderation is either by adding (in the case of strict examiners) or deducting (in the case of liberal examiners) a particular numberof marks which has been decided with reference to principles ofmoderation applied. If there is erratic or careless marking, thenmoderation is by fresh valuation by another examiner. Therefore,the marks assigned by the examiner as moderated will be themarks finally awarded to the candidates or marks obtained by thecandidates. Moderation, it has to be held, is inherent in theevaluation of answer-scripts in any largescale examination, wherethere are more than one examiner.

20. We cannot accept the contention of the petitioner that thewords “marks awarded” or “marks obtained in the written papers”refer only to the actual marks awarded by the examiner.“Valuation” is a process which does not end on marks beingawarded by an examiner. Award of marks by the examiner isonly one stage of the process of valuation. Moderation whenemployed by the examining authority, becomes part of the processof valuation and the marks awarded on moderation become thefinal marks of the candidate. In fact Rule 20(3) specifically refersto the “marks finally awarded to each candidate in the writtenexamination”, thereby implying that the marks awarded by theexaminer can be altered by moderation.

21. But the question is whether the raw marks which are convertedinto scaled scores on an artificial scale with assumed variables(assumed mean marks and assumed standard deviation) can beconsidered as “marks finally awarded” or “marks obtained”. Scaledscores are not marks awarded to a candidate in a writtenexamination, but a figure arrived at for the purpose of being placedon a common scale. It can vary with reference to two arbitrarilyfixed variables, namely, “assumed mean” and “assumed standardmean”. We have dealt with this aspect in greater detail whiledealing with Question (iii). For the reasons given while consideringQuestion (iii), we hold that “scaled scores” or “scaled marks”cannot be considered to be “marks awarded to a candidate in thewritten examination”. Therefore, scaling violates Rule 20(3) andNote (i) of Appendix II of the Judicial Service Rules.

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24. In the Judicial Service Examination, the candidates wererequired to take the examination in respect of all the five subjects AB

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Aand the candidates did not have any option in regard to the subjects.In such a situation, moderation appears to be an ideal solution.But there are examinations which have a competitive situationwhere candidates have the option of selecting one or few amonga variety of heterogenous subjects and the number of studentstaking different options also vary and it becomes necessary toBprepare a common merit list in respect of such candidates. Let usassume that some candidates take Mathematics as an optionalsubject and some take English as the optional subject. It is wellrecognised that marks of 70 out of 100 in Mathematics do notmean the same thing as 70 out of 100 in English. In English 70 outCof 100 may indicate an outstanding student whereas inMathematics, 70 out of 100 may merely indicate an averagestudent. Some optional subjects may be very easy, when comparedto others, resulting in wide disparity in the marks secured by equallycapable students. In such a situation, candidates who have optedfor the easier subjects may steal an advantage over those whoDopted for difficult subjects. There is another possibility. The paper-setters in regard to some optional subjects may set questions whichare comparatively easier to answer when compared to some paper-setters in other subjects who set tougher questions which aredifficult to answer. This may happen when for example, in CivilEService Examination, where Physics and Chemistry are optionalpapers, Examiner ‘A’ sets a paper in Physics appropriate to degreelevel and Examiner ‘B’ sets a paper in Chemistry appropriate formatriculate level. In view of these peculiarities, there is a need tobring the assessment or valuation to a common scale so that theinter se merit of candidates who have opted for different subjects,Fcan be ascertained. The moderation procedure referred to in theearlier para will solve only the problem of examiner variability,where the examiners are many, but valuation of answer-scripts isin respect of a single subject. Moderation is no answer where theproblem is to find inter se merit across several subjects, that is,Gwhere candidates take examination in different subjects. To solvethe problem of inter se merit across different subjects, statisticalexperts have evolved a method known as scaling, that is creationof scaled score. Scaling places the scores from different tests ortest forms on to a common scale. There are different methods ofstatistical scoring. Standard score method, linear standard score A

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method, normalised equipercentile method are some of therecognised methods for scaling.

25. A. Edwin Harper Jr. and V. Vidya Sagar Misra in theirpublication Research on Examinations in India have tried to explainand define scaling. We may usefully borrow the same. A degree“Fahrenheit” is different from a degree “Centigrade”. Thoughboth express temperature in degrees, the “degree” is different forthe two scales. What is 40 degrees in Centigrade scale is 104degrees in Fahrenheit scale. Similarly, when marks are assignedto answer-scripts in different papers, say by Examiner ‘A’ inGeometry and Examiner ‘B’ in History, the meaning or value ofthe “marks” is different. Scaling is the process which brings themarks awarded by Examiner ‘A’ in regard to Geometry scale andthe marks awarded by Examiner ‘B’ in regard to History scale, toa common scale. Scaling is the exercise of putting the marks whichare the results of different scales adopted in different subjects bydifferent examiners onto a common scale so as to permitcomparison of inter se merit. By this exercise, the raw marksawarded by the examiner in different subjects are converted to a“score” on a common scale by applying a statistical formula. The“raw marks” when converted to a common scale are known asthe “scaled marks”. Scaling process, whereby raw marks indifferent subjects are adjusted to a common scale, is a recognisedmethod of ensuring uniformity inter se among the candidates whohave taken examinations in different subjects, as, for example,the Civil Services Examination.”

34.2 Finally, following directions were issued by this Court:- “53. However, insofar as the petitioners are concerned, we deemit proper to issue the following directions to do complete justice onthe facts of the case:

(a) If the aggregate of raw marks in the written examinationand the marks in the interview of any petitioner is less thanthat of the last selected candidate in the respective category,he will not be entitled to any relief (for example, the petitionersin WP (C) No. 165 of 2005 belonging to the category ‘BC’have secured raw marks of 361 and 377 respectively in thewritten examinations, whereas the last five of the selectedcandidates in that category have secured raw marks of 390, AB

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391, 397, 438 and 428 respectively. Even after adding theinterview marks, the marks of the petitioners in WP (C) No.165 of 2005 are less than the marks of the selected candidates).

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(b) Where the aggregate of raw marks in the writtenexamination and the interview marks of any petitioner, is moreBthan the aggregate of the raw marks in the written examinationand interview marks of the last selected candidate in hiscategory, he shall be considered for appointment in therespective category by counting his appointment against futurevacancies. [For example, we find that petitioner Archna Rani,one of the petitioners in WP (C) No. 467 of 2005 has securedC384 raw marks which is more than the raw marks secured bythe last five selected candidates (347, 337, 336, 383 and 335)under the SC category and even after adding the interviewmarks, her marks are more than the five selected candidates.Hence, she should be considered for appointment.] This reliefDwill be available only to such of the petitioners who haveapproached this Court and the High Court before 31-8-2005.”

35. In Mahinder Kumar and Ors. v. High Court of MadhyaPradesh and Ors.[13] relevant clauses of Para 9 of the advertisementand the concerned Rule 7 were considered by this Court as follows:-

E“15. The advertisement stated that out of 20 posts, 11 posts wereearmarked for general category candidates and three posts eachreserved for Scheduled Castes, Scheduled Tribes and OtherBackward Class candidates. It was also made clear that if sufficientnumber of suitable candidates belonging to the reserved categorieswere not available, such posts would be treated as unreserved.FPara 9 of the advertisement which contains sub-clauses (i) to(vii) are relevant for our purpose. The same are required to beextracted, which read as under:

“(i) The candidates may be shortlisted at the preliminarystage i.e. before written examination, by the High Court.

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(ii) Eligible candidates will be required to appear in writtenexamination and interview at their own expenses before theHigh Court of Madhya Pradesh, Jabalpur, or at such otherplaces as may be specified by the High Court.

(iii) The written examination shall consist of two papers,each of 3 hours’ duration and of maximum 100 marks. Theobject of the written examination is to assess the knowledgeof a candidate in Law and latest pronouncements. First papershall relate to the Constitution of India, the Civil ProcedureCode, CrPC, IPC, Hindu Law, the Transfer of Property Act,the M.P. Accommodation Control Act, the Limitation Act, theEvidence Act and the M.P. Land Revenue Code, special Actslike NDPS, the Scheduled Castes and Scheduled Tribes(Prevention of Atrocities) Act, the Prevention of CorruptionAct, the Negotiable Instrument Act.

Second paper will be in two parts, the first part will containfactual data of a civil case and a criminal case on the basis ofwhich the candidate shall prepare judgment in the civil caseand criminal case. The second part will contain a passage inHindi to be translated into English and a passage in English totranslate into Hindi.

(iv) Only such candidates will be called for interview asthe High Court may decide, on the basis of evaluation of theirperformance in the written examination.

(v) The interview shall carry 25 marks.

(vi) Candidates shall be selected on the basis of aggregatemarks obtained by them in both the written examination andinterview.

(vii) On completion of the selection process, the result ofexamination (list of selected candidates) shall be published inM.P. Rajpatra and all the candidates both successful andunsuccessful shall be supplied marksheets at their givenaddresses by ordinary post.”

16. The said Para 9 states as to how the short-listing of candidatesat the preliminary stage itself before the written examination wereto be made by the High Court, the requirement of the candidatesto appear in the written examination consisting of two paperswhere, the maximum marks in each paper was 100 and the relevantlaws in which the examination would be conducted in both thepapers was also specified. In Para 9(iv), it was specified that theHigh Court may decide on the basis of evaluation of their AB

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Aperformance in the written examination for calling those candidatesfor interview. Under Para 9(v), the interview marks were specifiedas 25. In Para 9(vi), it was mentioned that the candidates wouldbe selected on the basis of aggregate marks obtained by them,both in the written examination and the interview. The lastparagraph of the amended Rule 7 is also relevant, which reads asBunder:

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“The procedure of selection for direct recruitment andpromotion shall be such, as may be specified by the High Courtfrom time to time.”

35.1 On the question whether the High Court was entitled to adoptthe process of normalization while evaluating performance in the writtenexamination, this Court observed as under:

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“37. Once we steer clear of the said position, the next submissionof the learned Senior Counsel for the petitioner was that whenassuming Rule 7 empowers the High Court to follow its ownprocedure, it should have been disclosed in the advertisement.The contention of the learned Senior Counsel was that whateverprocedure evolved by the High Court should have been disclosedwell in advance by the High Court or at least before the writtenexamination was conducted. When we consider the saidsubmission, we find that there is a clear indication in Para 9 of theadvertisement as to in what manner the High Court is going toconduct the selection process:

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37.1. Para 9(i) makes it clear that the candidates may be shortlistedat the preliminary stage i.e. before the written examination is heldFby the High Court. No one can find fault with such a prescription,inasmuch as such short-listing will have to be necessarily made inorder to ensure that only such of those candidates who satisfy theconditions in Paras 2-8 of the advertisement are duly compliedwith.

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37.2. In fact, Para 8 makes it clear that non-receipt of the formsof application, etc. in time by the candidate will not be acceptedas an excuse for late submission of the application forms. Meaningthereby, that any application for the post to be submitted before30-9-2006, should be complete in all respects furnishing whateverdetails which were required to be furnished and also satisfy the H

various conditions such as, age restriction, years of practice,character certificate, citizenship, etc. If such conditions are notfulfilled, by exercise of such power contained under Rule 9(i), theHigh Court would be fully entitled to exclude the consideration ofsuch candidates for participating in the written examinations.

37.3. In Para 9(iii), it has been sufficiently indicated that eachpaper of the written examination will be for a duration of 3 hours,with a maximum of 100 marks to be scored. The object in holdingthe written examination in both the first and second papers, havealso been specifically highlighted in Para 9(iii).

37.4. Once the written examination part is fulfilled, the High Courthas to formulate a procedure by which the answer papers are tobe evaluated in order to ascertain the marks scored by therespective candidates. Therefore, in Para 9(iv) it has been specifiedthat before calling any of the candidates for interview whoappeared for the written examination, an evaluation will have tobe made and based on the evaluation and performance, the HighCourt will decide as to who should be called for the interview.

37.5. The expression “evaluation” would, therefore, take into itsfold the minimum marks to be scored, the manner in which theevaluation is to be made and in the event of any requirement, toequalise the merits of the candidate in the written examinationand follow any appropriate procedure in consonance with law, inorder to ultimately arrive at a fair process by which the candidatecan be called for interview, based on the evaluation of the marksin the written examination.

38. In a situation like this, where nearly 3000 candidates appearedfor the written examination and the answer papers were evaluatedby several District Judges, it cannot be held that there was everyscope for variation in the assessment of the answers and the awardof marks valued by different valuers. The High Court in exerciseof its authority under Rule 7, read along with Para 9(iv) adopted afair procedure to normalise the marks of the candidates in orderto assess their respective merits. Therefore, the expression“evaluation” used in Para 9(iv), should be held to fully empowerthe High Court to even resort to such a step in a case like this,where more number of District Judges evaluated the answersheets and thereby, it required the intervention of the High Court A

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Aon its administrative side, to find a fair method by which thenormalisation of the marks could be worked out.”

The action on part of the High Court in adopting the process ofnormalization was thus, accepted by this Court and the challenge raisedagainst such process was rejected.

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36. It is important to note that Subhash Chandra Dixit[12 ]wasdecided by a Bench of two Judges of this Court while Sanjay Singh[5]and Mahinder Kumar[13 ]were decided by Benches of three Judges.Further, the decision in Sanjay Singh[5]was noticed in paragraph 7 of thedecision in Mahinder Kumar[13 ]but Rule 7 and Para 9 (iv) of theCadvertisement were found sufficiently wide enough to admit adoption ofa procedure by which normalization of marks could be worked out.

37. In Sunil Kumar and others v. Bihar Public ServiceCommission and others[14], a Bench of two Judges of this Court, amongother questions, considered the applicability of the decision in SanjayDSingh[5]to cases where the candidates were tested in different subjectsas against an examination where the question papers were compulsoryand common to all the candidates. The discussion was:- “11. Having considered the rival submissions advanced beforeus, we are of the view that the question that calls for an answer inEthe present case is whether this Court in Sanjay Singh[5] had laiddown any principle or direction regarding the methodology thathas to be adopted by the Commission while assessing the answerscripts of the candidates in a public examination and specificallywhether any such principle or direction has been laid downgoverning public examinations involving different subjects in whichFthe candidates are to be tested. Closely connected with theaforesaid question is the extent of the power of judicial review toscrutinise the decisions taken by another constitutional authorityi.e. the Public Service Commission in the facts of the presentcase.

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13. We have read and considered the judgment in Sanjay Singh[5].In the said case, this Court was considering the validity of theselections held for appointment in the U.P. Judicial Service on the H14 (2016) 2 SCC 495

basis of a competitive examination in which the Rules prescribedfive (5) papers all of which were compulsory for all the candidates.There is no dispute that the U.P. Public Service Commission inthe aforesaid case had scaled down the marks awarded to thecandidates by following the scaling method. This Court, after holdingthat the Judicial Service Rules which governed the selection didnot permit the scaled down marks to be taken into consideration,went into the further question of the correctness of the adoptionof scaling method to an examination where the papers werecompulsory and common to all the candidates. In doing so, it wasobserved as follows: (SCC p. 742, para 24)

“24. The moderation procedure referred to in the earlierparagraph will solve only the problem of examiner variability,where the examiners are many, but valuation of answer scriptsis in respect of a single subject. Moderation is no answer wherethe problem is to find inter se merit across several subjects,that is, where candidates take examination in different subjects.To solve the problem of inter se merit across different subjects,statistical experts have evolved a method known as scaling,that is creation of scaled score. Scaling places the scores fromdifferent tests or test forms on to a common scale. There aredifferent methods of statistical scoring. Standard score method,linear standard score method, normalised equipercentile methodare some of the recognised methods for scaling.”

It was furthermore observed: (SCC p. 742, para 25)

“25. … Scaling process, whereby raw marks in differentsubjects are adjusted to a common scale, is a recognised methodof ensuring uniformity inter se among the candidates who havetaken examinations in different subjects, as, for example, theCivil Services Examination.”

14. After holding as above, this Court, on due consideration ofseveral published works on the subject, took note of thepreconditions, the existence or fulfilment of which, alone, couldensure an acceptable result if the scaling method is to be adopted.As in Sanjay Singh[5] the U.P. Public Service Commission hadnot ensured the existence of the said preconditions theconsequential effects in the declaration of the result were foundto be unacceptable. It was repeatedly pointed out by this Court AB

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(paras 36 and 37) that the adoption of the scaling method hadresulted in treating unequals as equals. Thereafter, in para 45 thisCourt held as follows: (SCC p. 751)

“45. We may now summarise the position regarding scalingthus:

(i) Only certain situations warrant adoption of scalingtechniques.

(ii) There are number of methods of statistical scaling, somesimple and some complex. Each method or system has its meritsand demerits and can be adopted only under certain conditionsor making certain assumptions.

(iii) Scaling will be useful and effective only if the distributionof marks in the batch of answer scripts sent to each examineris approximately the same as the distribution of marks in thebatch of answer scripts sent to every other examiner.

(iv) In the linear standard method, there is no guarantee thatthe range of scores at various levels will yield candidates ofcomparative ability.

(v) Any scaling method should be under continuous reviewand evaluation and improvement, if it is to be a reliable tool inthe selection process.

(vi) Scaling may, to a limited extent, be successful in eliminatingthe general variation which exists from examiner to examiner,but not a solution to solve examiner variability arising from the‘hawk-dove’ effect (strict/liberal valuation).”

15. Moreover, in para 46, this Court observed that the materialsplaced before it did not disclose that the Commission or any expertbody had kept the above factors in mind for deciding to introducethe system of scaling. In fact, in the said paragraph this Court hadobserved as follows: (Sanjay Singh[5] , SCC p. 751)

“46. … We have already demonstrated the anomalies/absurdities arising from the scaling system used. TheCommission will have to identify a suitable system of evaluation,if necessary by appointing another Committee of Experts. Tillsuch new system is in place, the Commission may follow themoderation system set out in para 23 above with appropriatemodifications.”

16. In Sanjay Singh[5] an earlier decision of this Court approvingthe scaling method i.e. U.P. Public Service Commission v.Subhash Chandra Dixit[12] to a similar examination was alsonoticed. In para 48 of the judgment in Sanjay Singh[5] it was heldthat the scaling system adopted in Subhash Chandra Dixit[12]received this Court’s approval as the same was adopted by theCommission after an in-depth expert study and that the approvalof the scaling method by this Court in Subhash Chandra Dixit[12]has to be confined to the facts of that case.

17. Finally, in para 51 of the Report in Sanjay Singh[5] the Courttook note of the submission made on behalf of the Commissionthat it is not committed to any particular system and “will adopt adifferent or better system if the present system is found to bedefective” (SCC p. 754).

18. In Sanjay Singh[5] the Court was considering the validity ofthe declaration of the results of the examination conducted by thePublic Service Commission under the U.P. Judicial Service Rulesby adoption of the scaling method. This, according to this Court,ought not to have been done inasmuch as the scaling system ismore appropriate to an examination in which the candidates arerequired to write the papers in different subjects whereas in theexamination in question all the papers were common andcompulsory. To come to the aforesaid conclusion, this Court hadnecessarily to analyse the detailed parameters inherent in thescaling method and then to reach its conclusions with regard tothe impact of the adoption of the method in the examination inquestion before recording the consequences that had resulted onapplication of the scaling method. The details in this regard havealready been noticed (Sanjay Singh case[5], paras 45 and 46) (inparas 14 and 15 herein).

19. The entirety of the discussion and conclusions in SanjaySingh[5] was with regard to the question of the suitability of thescaling system to an examination where the question papers werecompulsory and common to all candidates. The deficiencies andshortcomings of the scaling method as pointed out and extractedabove were in the above context. But did Sanjay Singh[5] laydown any binding and inflexible requirement of law with regard toadoption of the scaling method to an examination where the AB

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Acandidates are tested in different subjects as in the presentexamination? Having regard to the context in which the conclusionswere reached and opinions were expressed by the Court it isdifficult to understand as to how this Court in Sanjay Singh[5]could be understood to have laid down any binding principle oflaw or directions or even guidelines with regard to holding ofBexaminations; evaluation of papers and declaration of results bythe Commission. What was held, in our view, was that scaling is amethod which was generally unsuitable to be adopted forevaluation of answer papers of subjects common to all candidatesand that the application of the said method to the examination inCquestion had resulted in unacceptable results. Sanjay Singh[5] didnot decide that to such an examination i.e. where the papers arecommon the system of moderation must be applied and to anexamination where the papers/subjects are different, scaling isthe only available option. We are unable to find any declaration oflaw or precedent or principle in Sanjay Singh[5] to the above effectDas has been canvassed before us on behalf of the appellants. Thedecision, therefore, has to be understood to be confined to thefacts of the case, rendered upon a consideration of the relevantService Rules prescribing a particular syllabus.

20. We cannot understand the law to be imposing the requirementEof adoption of moderation to a particular kind of examination andscaling to others. Both are, at best, opinions, exercise of whichrequires an in-depth consideration of questions that are moresuitable for the experts in the field. Holding of public examinationsinvolving wide and varied subjects/disciplines is a complex taskFwhich defies an instant solution by adoption of any singular processor by a straitjacket formula. Not only examiner variations andvariation in award of marks in different subjects are issues to beanswered, there are several other questions that also may requireto be dealt with. Variation in the strictness of the questions set ina multi-disciplinary examination format is one such fine issue thatGwas coincidentally noticed in Sanjay Singh[5]. A conscious choiceof a discipline or a subject by a candidate at the time of his entryto the University thereby restricting his choice of papers in a publicexamination; the standards of inter-subject evaluation of answerpapers and issuance of appropriate directions to evaluators inHdifferent subjects are all relevant areas of consideration. All such questions and, may be, several others not identified herein arerequired to be considered, which questions, by their very natureshould be left to the expert bodies in the field, including, the PublicService Commissions. The fact that such bodies including theCommissions have erred or have acted in less than a responsiblemanner in the past cannot be a reason for a free exercise of thejudicial power which by its very nature will have to be understoodto be, normally, limited to instances of arbitrary or mala fideexercise of power.”

38. In Uttar Pradesh Public Service Commission vs. ManojKumar Yadav and another[15], the process of selection comprised ofpreliminary examination in General Studies and one optional subject,whereas, the main written examination was to consist of four compulsorypapers i.e. two in General Studies and one paper each in Hindi andEnglish essay. The Public Service Commission had adopted “Scaling ofMarks” at the preliminary as well as the main written examination. ABench of two Judges of this Court applied the law laid down by thisCourt in Sanjay Singh[5] and found that scaling method could not havebeen adopted for compulsory subjects. However, considering the factthat the directions issued by the High Court would result in displacementof a number selected candidates and alteration of merit list causing seriousprejudice to those appointed and working for last few years, the reliefwas not granted. The relevant discussion is to be found in paragraphs 13and 15:-

“13. In the PCS Examination, 2004 and the Backlog Examination,2004 the candidates had to take part in the main writtenexaminations which consisted of four compulsory subjects andtwo optional subjects. The compulsory subjects were common toall candidates and the two optional subjects were to be chosenfrom the available 33 subjects as mentioned in the advertisements.As per the judgment of this Court in Sanjay Singh case[5], theCommission could have followed the scaling method only for theoptional subjects and not for the compulsory subjects. However,it is clear from the submissions made on behalf of the appellant inthe High Court that scaling method was followed even forcompulsory subjects. We approve the findings of the High Courtthat the evaluation of the PCS and Backlog Recruitment AB

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AExaminations, 2004 was contrary to the judgment of this Court inSanjay Singh case[5].

15. It is settled law that in certain situations, on account ofsubsequent events, the final relief granted by this Court may notbe the natural consequence of the ratio decidendi of its judgment.BIn such situations, the relief can be moulded by the Court in orderto do complete justice in the matter. It is relevant to note the factthat Sanjay Singh case[5] was also made prospective in operationand this Court declined to interfere with the selections alreadymade in that case on the basis that relief can be moulded. In theinstant case, the examinations were conducted by the appellantCon the basis of the pattern being followed by them since 1996. Atthe time when the examinations were conducted, a judgment ofthis Court in U.P. Public Service Commission v. SubhashChandra Dixit[12] approving the scaling method adopted by theCommission held the field. Moreover, the selected candidates wereDappointed on the basis of an interim order passed by this Court in2007 and they have been working continuously since then. Thereare no allegations of any irregularities or malpractices in the conductof the said examinations. The candidates who participated in theexaminations cannot be found fault with for the error committedby the appellant in adopting the scaling method. In view of theEabove, we do not deem it fit to disturb the appointments madepursuant to the selections in the examinations conducted in 2004.”

39. In the backdrop of these decisions, what is of importance inthe instant matters is the fact that more than 6.3 lakh applicants hadsubmitted online application forms whose candidature was tested inFwritten examinations held in 29 different batches over 12 days. Thecases dealt with by this Court did not deal with the fact situation akin tothat which arises in the instant matters. In the aforesaid decisions thenumber of candidates was not quite large (4270 in Subhash ChandraDixit[12], 51524 and 5748 in preliminary and main examinations respectivelyGin Sanjay Singh[5 ]and about 3000 in Mahinder Kumar[13]). Further, thesedecisions dealt with “single examination” for the concerned papers orsubjects and the variability was either with regard to the examiners or inthe circumstances arising from different optional subjects.

40. Cases of single examination where there are multiple numberHof examiners may call for moderation to be adopted by the examiner-in- chief or such body constituted for the purposes. On the contrary, scalingof marks has been accepted to be an appropriate method wherecandidates are tested in different subjects. As noticed by this Court inSanjay Singh[5], a candidate having secured 70% marks in “Mathematics”cannot be said to be on an equal footing as against the candidate whohad secured 70% marks in “English”. As against examiner variability inthe same or compulsory examination, the subject variability was thusfound to be a good ground to adopt “Scaling of Marks” as a method toput all the candidates on an even keel.

41. In the instant cases, we are however concerned with adimension which had not been considered earlier, namely variability onaccount of the fact that the candidates were tested on different datesover 12 days through different sets of question papers. The Board couldnot possibly have gone ahead with examination for 29 different batcheswith the same type of questions as the subsequent batches would thenhave had advantage of having seen the pattern of questions put to theearlier batches. Thus, though the subjects were same, the question paperswould necessarily be different in terms of quality and approach. In asituation such as that the “Scaling of Marks” had to be adopted and thatwould always be the correct approach.

42. As found by this Court in Sunil Kumar[14], the decision inSanjaySingh[5]cannot be said to have laid down an inflexible rule that Scaling ofMarks can never be adopted. As a matter of fact, though, a Bench ofthree Judges of this Court noticed the earlier decision in Sanjay Singh[5],it found the approach of the High Court in “Scaling of Marks” even inthe same examination to be appropriate in Mahinder Kumar[13]so as toeliminate every scope for variation in the assessment of answers andaward of marks valued by different valuers. The concerned provisionsnamely, clause (iv) of Para 9 of the advertisement and last paragraph ofamended Rule 7, were construed to be adequate to empower and permitthe High Court to adopt “scaling of marks”.

43. On lines similar to Rule 7 considered in Mahinder Kumar[13],the clause “Detailed procedure for written examination shall bedetermined by the Board and will be displayed on its own website” asappearing in Rule 15(b), specifically empowered the Board to devise ordetermine the procedure. With deletion of Appendix-3 and specificempowerment in Rule 15(b), the Board could have multiple examinationsinstead of one single examination. By very nature of such empowerment AB

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Aand in the backdrop of conducting an examination for more than 6 lakhcandidates, the Board was entitled to adopt the process of ‘scaling ofmarks’ or ‘normalization’. Given the facts and circumstances, the processof ‘scaling of marks’ or normalization was inevitable in the instant matterand was necessarily required to be undertaken. This aspect of the matteris accepted by the learned counsel for the respondents but in theirBsubmission the appropriate stage for application of normalization wouldbe at Rule 15(e) level.

44. According to the learned Additional Advocate General andthe learned counsel appearing for the candidates whose names figuredin the select list prepared by the Board, the stage at which normalizationCwas required to be applied was at Rule 15 (b) level. In their submission,if the basic idea was to put all candidates on an even and equal parameterthrough the process of normalization and, if the scoring in the writtenexamination was to be the main determining criteria for selection, thenormalization had to be applied at the initial stage itself.D

On the other hand, according to the learned counsel for the originalwrit petitioners, who found themselves to be disqualified for havingsecured less than 50% marks after normalization, the application ofnormalization had to be at the stage of preparation of the final merit list.It was submitted that regardless whether the candidate had obtainedEless than 50% “normalized score” in a subject or subjects, he would stillbe part of the final merit list as he had already secured 50% “raw marks”in each of the subjects.

45. It is true that the written examination, subject to the qualifyingfacets such as Scrutiny of Documents, Physical Standard Test andFPhysical Efficiency Test, is now the determining criteria. Going by theplain language of the concerned provisions, what is clear is both provisionsi.e. Rule 15(b) and 15(e) refer to the expression ‘marks’. Rule 15(b) ofRecruitment Rules requires every candidate to obtain minimum 50%marks in each of the subjects and states, “candidates failing to obtain50% marks in each of the above subjects shall not be eligible forGrecruitment”. Rule 15(e) requires the Board to prepare a select list ofeach category of candidates, “on the basis of marks obtained by eachcandidate in written examination under clause (b)”. The provisions donot, on the plain language employed, demand different yardstick orprinciple to be adopted.H

46. If we construe the expression ‘marks’ in Rules 15(b) and15(e) to be ‘raw marks’ at both the stages that will go against the verybasic idea which calls for applicability of ‘scaling of marks’ or‘normalization’ because of the variability arising from multipleexaminations. Thus, if ‘raw marks’ is to be the basis at both the stages,the candidates would never be tested on an equal footing or basis. Thiswould, therefore, call for either of the following two alternatives:- Either to consider expressions ‘marks’ in both these provisions tobe marks after the adoption of normalization, or ‘normalized score’, orto accept the course suggested by the learned counsel for the respondentsand construe expression ‘marks’ in Rule 15(b) to be ‘raw marks’ andapply normalization at Rule 15(e) stage only to consider inter se meritposition.

47. However, if the submission advanced by the learned counselfor respondents is accepted, it will lead to incongruities on three counts.

It may, as well, lead to a situation where a person, in the finalanalysis i.e. after the ‘scaling of marks’ or ‘normalization’ is adopted,may have failed to secure more than 50% “normalized score” in a subjector subjects and yet he will be part of the Select List.

Secondly, those who may have secured more than 50% ‘normalizedscore’ but less than 50% ‘raw marks’ will be out of reckoning as theywould not be allowed to go beyond Rule 15(b) stage.

Lastly, such a course will necessarily imply that the expression“Candidates failing to obtain 50% marks in each of the above subjectshall not be eligible for recruitment” [as appearing in Rule 15(b)] willhave to be treated differently as against the preparation of a select list[in terms of Rule 15(e)] “on the basis of marks obtained by each candidatein written examination under clause (b)”.

48. It is relevant to note that the ineligibility referred to in Rule15(b) is as against ‘recruitment’. The criteria for eligibility is not justconfined to the stages upto 15(c) and 15(d) but must be fulfilled all throughi.e. upto recruitment. Rule 15(e) makes specific and clear reference to- marks obtained by each candidate in written examination under clause(b). The verb used is ‘obtain’ at both the places i.e. in Rule 15(b) and inRule 15(e). At both the stages the marks ‘obtained’ in writtenexaminations referable to clause (b), are the relevant criteria for (i)being eligible for recruitment in terms of Rule 15(b) and for (ii) preparing AB

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Athe select list under Rule 15(e). Adopting a different yardstick assuggested by the learned counsel for the respondents will certainly leadto incongruent situations as stated above.

49. It is true that the same expression appearing at different placesin a statute has, on some occasions, been construed by this CourtBdifferently, depending upon the context in which such expressions appear.For instance, in Commissioner of Income Tax, Bangalore v.Venkateswara Hatcheries (P) Ltd.[16], this Court relied upon the earlierdecision of this Court in Shamrao Vishnu Parulekar v. The DistrictMagistrate, Thana[17] and found the expression “Articles of things” couldnot be assigned the same meaning as was used in Fifth Schedule toCSections 32A and 80J of the Income Tax Act. The discussion on thepoint was:

“18. It was then urged by the learned counsel for the assesseethat the Act uses the words “articles or things” at several placesand the meaning assigned to them in other places of the Act shouldDalso be assigned under Section 32-A and Section 80-J of the Act.The Fifth Schedule of the Act sets out a list of items which aretreated as articles or things manufactured or produced for thepurpose of Section 33(1)(b) of the Act. In this Schedule we findthat processed seeds which are products of plants have beenEshown as “articles or things”. Similarly, Item (30) of the saidSchedule is “fish”, which is an animate object, but it has beenshown under the heading “articles or things”. On the strength ofthe meaning assigned to articles and things in the Fifth Scheduleof the Act, it was urged that hatching of chicks is also productionof “articles or things”. It is, no doubt, true that processed seedsFand fish have been described under the heading “articles or things”in the Fifth Schedule. Generally, the same words in a statute havethe same meaning whenever used in that statute, but they mayalso have a different meaning in different provisions of the samestatute. In Shamrao Vishnu Parulekar v. Distt. Magistrate,GThana[17] :

“But it is contended by Mr Chatterjee that the expression‘grounds on which the order has been made’ occurring in 16 (1999) 3 SCC 632H17 (1956) SCR 644

Section 3(3) is, word for word, the same as in Section 7, thatthe same expression occurring in the same statute must receivethe same construction, that what Section 3 requires is that onthe making of an order for detention, the authority is to formulatethe grounds for that order, and send the same to the StateGovernment under Section 3(3) and to the detenu under Section7, and that therefore it was not sufficient merely to send to theState Government a report of the materials on which the orderwas made. Reliance was placed on the following passagein Maxwell’s Interpretation of Statutes, Edn. 10, p. 522:

‘It is, at all events, reasonable to presume that the samemeaning is implied by the use of the same expression inevery part of an Act.’

The rule of construction contended for by the petitioners iswell settled, but that is only one element in deciding what thetrue import of the enactment is, to ascertain which it isnecessary to have regard to the purpose behind the particularprovision and its setting in the scheme of the statute. ‘Thepresumption’, says Craies, ‘that the same words are used inthe same meaning is however very slight, and it is proper “ifsufficient reason can be assigned, to construe a word in onepart of an Act in a different sense from that which it bears inanother part of an Act”’. (Statute Law, Edn. 5, p. 159) AndMaxwell, on whose statement of the law the petitioners rely,observes further on:

‘But the presumption is not of much weight. The same wordmay be used in different senses in the same statute, andeven in the same section.’ “

19. The same word, if read in the context of one provision of theAct, may mean or convey one meaning and another in a differentcontext. The legislature in its wisdom had chosen to placeprocessed seeds and fish under the heading articles or things inthe Fifth Schedule as the legislature is competent to give artificialmeaning to any word. We are, therefore, of the opinion that themeaning assigned to the words “articles or things” in the FifthSchedule cannot be assigned to the words “articles or things”used in Sections 32-A and 80-J of the Act.

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A20. Learned counsel for the assessee relied upon several decisionsunder the Sales Tax Acts, Central Excise Act and the provisionsof other statutes for the contention that “article” includes goodsand goods could be an animate object and, viewed in this light, thehatching of eggs would come within the meaning of the word“produce” which is of a wider import than the word “manufacture”.BNo doubt, several Sales Tax Acts have included animate thingsfor the purpose of levying tax on sales. But the meaning assignedto a particular word in a particular statute cannot be imported to aword used in a different statute.

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21. We, therefore, reject the submissions of the learned counselCfor the assessee. For the aforesaid reasons, we hold that thedecision by the Andhra Pradesh High Court in the caseof CIT v. Sri Venkateswara Hatcheries (P) Ltd.[18] does not laydown the correct view of law, whereas we approve the decisionof the Bombay High Court in the case of CIT v. DeejayDHatcheries[19].

22. The result of the aforesaid discussion is that the assessee isneither an industrial undertaking nor is it engaged in the businessof producing “articles or things”. Consequently, the assessee isnot entitled to investment allowance under Section 32-A of theAct and deductions under Sections 80-HH, 80-HHA, 80-I andE80-J of the Act.”

50. Thus, it is the context which must determine whether the sameexpression occurring at two different places must be considereddifferently or in the same light.

F51. If we accept the interpretation sought to be placed by thelearned counsel for the respondents it would result in a situation where aperson having ‘normalized score’ of 50% marks or above may be out ofreckoning because his raw marks were less than 50%; and, there aresizable number of such persons. At the same time, someone whose‘normalized score’ was well below 50% may still be part of the SelectGList because his “raw marks” were above 50%.

52. If the intent is to see that every candidate must have obtainedminimum 50% marks and those ‘candidates failing to obtain 50% marks 18 (1988) 174 ITR 231 (AP)H19 (1995) 211 ITR 652 (Bom)

in each of the above subjects shall not be eligible for recruitment’ asmandated by Rule 15(b) of Recruitment Rules or by paragraph 9 of thenotification dated 28.6.2017, even going by the context and purposiveinterpretation, the expression ‘marks’ must be given the same meaningat both the stages; and the only possible meaning that can be ascribed is‘normalized score’. Adopting different standards as suggested by thelearned counsel for the respondents would result in anomalous situations.Such anomaly will however stand removed if the expression ‘marks’appearing in Rules 15(b) and 15(e) stages is construed in the same lightand as ‘normalized score’. The submissions advanced by the learnedAdditional Advocate General and other learned counsel for the appellants,therefore, merit acceptance.

53. In conclusion, the exercise undertaken by the Board in adoptingthe process of normalization at the initial stage, that is to say, at the levelof Rule 15(b) of Recruitment Rules was quite consistent with therequirements of law. The power exercised by the Board was well withinits jurisdiction and as emphasized by the High Court there were noallegations of mala fides or absence of bona fides at any juncture of theprocess. One more facet of the matter is the note of caution expressedby this Court in paragraph 20 of its decision in Sunil Kumar and othersv. Bihar Public Service Commission and others.[14 ]As observed bythis Court, the decisions made by expert bodies, including the PublicServices Commissions, should not be lightly interfered with, unlessinstances of arbitrary and mala fide exercise of power are made out.

54. We have, therefore, no hesitation in accepting the challengeraised on behalf of the State and allowing these appeals and settingaside the judgment and order passed by the High Court presently underchallenge. The results declared by the Board on 28[th] February 2019shall now be given effect as early as possible.

55. It must, however, be observed that the State and the Boardhad permitted candidates from both the categories i.e. who had securedmore than 50% ‘raw marks’ as well as those who had secured morethan 50% ‘normalized score’, as detailed in paragraph 5 hereinabove.Such candidates had participated in all the further stages, namely, inphysical standard test, physical efficiency test, though some of themfrom the first category were finally disqualified on the ground that theyhad secured less than 50% ‘normalized score’. The State may considermaking some allowance in favor of such subsequently disqualified AB

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Acandidates either by granting some weightage and/or age relaxation inthe next selection.

56. Before parting, we must acknowledge the valuable assistanceprovided by all the learned counsel who appeared for the parties in theinstant matters.

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The appeals are allowed in aforesaid terms without any order asto costs.

Devika Gujral

Appeals allowed.

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